a constitutional analysis of access rights that limit

A constitutional analysis of access rights that limit landowners’ right

to exclude

ByPriviledge Dhliwayo

Dissertation presented in partial fulfilment of the degree of Doctor of Laws at Stellenbosch University

Promoter: Professor AJ van der Walt

South African Research Chair in Property Law

December 2015

i

Declaration

By submitting this dissertation electronically, I declare that the entirety of the work

contained therein is my own, original work, that I am the authorship owner thereof

(unless to the extent explicitly otherwise stated) and that I have not previously in its

entirety or in part submitted it for obtaining any qualification.

Priviledge Dhliwayo

July 2015, Stellenbosch

Copyright © 2015 Stellenbosch University

All rights reserved

Stellenbosch University https://scholar.sun.ac.za

ii

Summary

The right to exclude is portrayed either in a strong-absolute sense or a qualified

sense. According to the South African doctrinal notion of ownership, ownership and

the right to exclude are exercised and protected insofar as the law permits. The law

sometimes grants non-owners access rights to land without the landowner’s prior

permission or consent and this places substantial limitations on the right to exclude.

The research problem addressed in this dissertation pivots on the relationship

between exclusion and access rights. It provides an overview of the theoretical and

doctrinal perspectives on the existence of limitations in the form of access rights,

deriving from different sources and for different reasons, and considers possible

justifications for the limitations.

This dissertation shows that there is a wide range of limitations originating from

different sources, with the result that limitations are to be expected and cannot be

seen as exceptions. In this regard, the dissertation considers the justification issue

from a constitutional perspective to determine whether it is necessary to justify all

limitations on the right to exclude. From this perspective, justification for a limitation

is not based on normative grounds, but instead focuses on the authority and reason

for the limitation and its effect on the affected owner. The point is that limitations on

the right to exclude are normal in a legal and constitutional system within which

property functions and of which limitations are part. Case law and examples dealing

with the conflict between exclusion and access rights indicate that exclusion of non-

owners is not always the preferred outcome and that it is not prioritised abstractly.

This suggests that the right to exclude is relative and contextual in nature.


iii

Opsomming

Die reg tot uitsluiting word voorgehou as óf absoluut óf gekwalifiseerd. Volgens die

Suid-Afrikaanse dogmatiese beskouing van eiendomsreg kan die reg tot uitsluiting

uitgeoefen word insoverre die reg dit toelaat. Die reg verleen soms toegangsregte

aan nie-eienaars sonder die eienaar se vooraf toestemming, wat ‘n wesenlike

beperking op die eienaar se reg plaas.

Die navorsingsprobleem wat in hierdie proefskrif aangespreek word fokus op

die verhouding tussen uitsluiting en toegang. Dit verskaf ‘n oorsig van teoretiese en

doktrinêre perspektiewe op die bestaan van beperkings in die vorm van

toegangsregte, wat ontstaan uit verskillende bronne en vir verskillende redes, en

oorweeg moontlike regverdigingsgronde vir die beperkings.

Die proefskrif toon aan dat daar ‘n wye verskeidenheid beperkings uit

verskillende bronne ontstaan, met die gevolg dat beperkings verwag moet word en

dat dit nie as uitsonderings gesien kan word nie. Die proefskrif oorweeg die

regverdigingsvraag vanuit ‘n grondwetlike perspektief om te bepaal of dit nodig is om

alle beperkings op die reg om uit te sluit te regverdig. Vanuit hierdie perspektief blyk

dit dat regverdiging nie op normatiewe gronde gebaseer is nie, maar eerder fokus

die gesag en redes vir ‘n beperking, asook op die effek daarvan op die eienaar. Die

punt is dat beperkings op die reg om uit te sluit normaal is in grondwetlike

regsisteem waarbinne eiendom funksioneer en waarvan beperkings deel vorm.

Regspraak en voorbeelde van die konflik tussen uitsluiting en toegang toon aan dat

uitsluiting van nie-eienaars nie altyd die wenslike uitkoms is nie en dat dit nie op ‘n

abstrakte wyse geprioritiseer kan word nie. Die reg om uit te sluit is dus relatief en

kontekstueel.


iv

Acknowledgements

I am forever thankful to God the almighty for the precious gift of life, immense

blessings and strength to persevere and to accomplish this LLD degree.

Many people contributed to the successful completion of this dissertation. I feel

very proud to mention some of them here.

I would like to thank my promoter, Professor AJ van der Walt for the lifetime

opportunity to work under his empowering guidance. Professor Van der Walt is a

globally celebrated and renowned property law scholar whose immense knowledge

and enormous experience facilitates unmatchable accelerated individual growth for

his students and fellow scholars. His invaluable assistance greatly facilitated the

writing and completion of this dissertation. I am very grateful for his support and

encouragement which significantly lightened up my studies. His commitment to the

development of young property law scholars and their integration into the property

scholars’ network is part of his indelible legacy.

Generous funding from the South African Research Chair in Property Law as

sponsored by the Department of Science and Technology and administered by the

National Research Foundation and hosted by Stellenbosch University enabled me to

complete my dissertation without any financial hardship.

I would like to thank my colleagues and friends at the South African Research

Chair in Property Law who walked with me through this journey: Prof Zsa-Zsa

Boggenpoel, Dr Reghard Brits, Dr Bradley Slade, Silas Siphuma, Lizette Grobler,

Elsabé van der Sijde, Sonja van Staden, Nhlanhla Sono, Jan-Harm Swanepoel and

Clireesh Cloete, amongst others. Our discussions during seminars in the Research

Chair gave me valuable knowledge and a broader understanding of property law. I


v

dare not forget to thank Dr Jill Robbie (Glasgow University) for her assistance in

finding Scots law materials I needed for my research.

Many of my relatives and friends, I cannot mention all by name, also supported

and encouraged me. I am very grateful to them.

To my parents, Morris and Miria Dhliwayo; I am deeply grateful for your love.

You are a constant source of inspiration in all my endeavours.

To my sisters Thokozani and Portia, brother Simbarashe, aunt Joyce Machine,

granny Florence Katyora and friend Martin Mutopa, thank you for your continued

support and encouragement.

I am indebted to Dr Tapiwa Shumba for his special love and unwavering

support. Thank you for always encouraging me to work hard and to keep my eyes

focussed on the greater picture. I end with your famous words to show that you are a

true spring of inspiration that inspired me.

“Hard work is the most universal talent that many people do not bother do

discover about themselves” Dr Tapiwa Shumba


vi

Table of contents

Declaration ................................................................................ i

Summary .................................................................................. ii

Opsomming ............................................................................ iii

Acknowledgements ............................................................... iv

Table of contents ................................................................... vi

Chapter one: Introduction ...................................................... 1

1 1 Introduction to the research problem ....................................................... 1

1 2 Outline of the research problem and hypotheses .................................... 7

1 2 1 Outline of the research problem ............................................................. 7

1 2 2 Hypotheses ........................................................................................... 13

1 3 Overview of chapters ................................................................................ 14

1 4 Terminology ............................................................................................... 20

1 5 Qualifications ............................................................................................ 23

Chapter two: Absolute ownership and the right to exclude

................................................................................................ 25


vii

2 1 Introduction ............................................................................................... 25

2 2 The idea of absolute ownership and exclusivity: A theoretical

analysis ............................................................................................................... 30

2 2 1 Moral property theories ......................................................................... 30

2 2 2 Contemporary exclusion theory ............................................................ 40

2 2 3 Exclusive-use theories .......................................................................... 55

2 2 4 Progressive property theory and exclusivity ......................................... 60

2 3 The idea of absolute ownership and exclusivity: A doctrinal

analysis ............................................................................................................... 79

2 3 1 The content of landownership in South African law:

General background .......................................................................................... 79

2 3 2 The notion of absolute ownership ......................................................... 89

2 4 Conclusion ............................................................................................... 100

Chapter three: Access rights that limit the right to exclude

.............................................................................................. 103

3 1 Introduction ............................................................................................. 103

3 2 Limitations deriving directly from non-property

constitutional rights ......................................................................................... 112


viii

3 3 Limitations imposed by legislation ....................................................... 123

3 3 1 Legislation giving effect to a non-property constitutional right ............ 123

3 3 2 Legislation not directly giving effect to a non-property

constitutional right ........................................................................................... 146

3 4 Limitations imposed by common law ................................................... 163

3 5 Conclusion ............................................................................................... 173

Chapter four: Justifications ............................................... 177

4 1 Introduction ............................................................................................. 177

4 2 Justification for a specific limitation ..................................................... 180

4 2 1 Non-property constitutional rights ....................................................... 180

4 2 2 Legislation directly giving effect to a non-property


4 2 3 Legislation not directly giving effect to a non-property


4 2 4 Common law rights ............................................................................. 197

4 3 Justification for the effect of limitations on owners ............................ 202

4 3 1 Introduction ......................................................................................... 202

4 3 2 The structure of section 25 ................................................................. 203


ix

4 3 3 The FNB methodology ........................................................................ 206

4 3 4 Deprivation: section 25(1) ................................................................... 208

4 3 5 The section 25(1) analysis .................................................................. 212

4 3 6 Application of the substantive non-arbitrariness test .......................... 218

4 3 7 Expropriation: Section 25(2) ............................................................... 229

4 4 Conclusion ............................................................................................... 234

Chapter 5: Conclusion ........................................................ 238

5 1 Introduction ............................................................................................. 238

5 2 Conclusions: The relative nature of the right to exclude .................... 239

5 2 1 The idea of absolute ownership and exclusivity .................................. 239

5 2 2 Limitations .......................................................................................... 243

5 2 3 Justifications ....................................................................................... 247

5 3 Concluding remarks ............................................................................... 252

Bibliography ........................................................................ 259

Case law ............................................................................... 285

South Africa ...................................................................................................... 285

Other jurisdictions ............................................................................................ 290


x

Legislations and constitutions .......................................... 293

South Africa ...................................................................................................... 293

Other jurisdictions ............................................................................................ 294


1

Chapter one:

Introduction

1 1 Introduction to the research problem

Victoria and Alfred Waterfront (Pty) Ltd and Another v Police Commissioner,

Western Cape and Others (Legal Resources Centre as Amicus Curiae) (Victoria and

Alfred Waterfront)1 is a South African decision that shows how landowners can be

prevented from excluding non-owners from private land. In Victoria and Alfred

Waterfront the Western Cape High Court considered an application for an order to

ban the second and third respondents permanently from entering the commercial

premises belonging to the applicants.2

The applicants applied for a permanent interdict to prohibit the respondents

from entering into and engaging in certain conduct on the premises. The application

was based on evidence that the respondents have been misbehaving themselves on

the premises over a period of time; interfering, harassing, threatening and assaulting

employees and visitors of establishments on the premises.3 The applicants, as

private landowners, relied on their allegedly absolute right to exclude non-owners

1 2004 (4) SA 444 (C). See Chapters 3 and 4 below.

2 The court also briefly considered whether a prohibition against begging on the premises was

unconstitutional. Mr De Waal, appearing on behalf of the applicants, sought to amend paragraph 1.2

of the order granted by Davis J by inserting a specific clause prohibiting the respondents from

begging at the premises. Even though this application was abandoned, Desai J decided to consider

the constitutional validity of prohibiting the respondents from begging. See Victoria and Alfred

Waterfront (Pty) Ltd and Another v Police Commissioner, Western Cape and Others (Legal

Resources Centre as Amicus Curiae) 2004 (4) SA 444 (C) 447-448.

3 Victoria and Alfred Waterfront (Pty) Ltd and Another v Police Commissioner, Western Cape and

Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA 444 (C) 447.


2

from their premises.4 They argued that the power to exclude others and exercise

control over the use of property lies at the core of the entitlements of private

ownership, which accrues to a property owner under the common law.5 Furthermore,

the applicants submitted that a property owner is protected against arbitrary

deprivation of property rights, including the right to exclude, in terms of section 25 of

the Constitution.6

The court decided that owners of premises do not have an absolute right of

exclusion and refused to grant a permanent interdict.7 Instead, the court granted an

order that prohibited the respondents from behaving in certain specified ways on the

premises.8 The court held that the applicants’ right to exclude non-owners from the

premises was qualified. In the court’s view, the premises had practically become a

suburb of Cape Town.9 Owners of private premises that are open to the public could

not exclude, on a permanent basis, members of the public who were causing a

nuisance on their premises, unless there is no other way of achieving a lawfully

justifiable goal such as protecting employees and customers from nuisance.10

In the context of denying an application for an order to prohibit the respondents

from begging on the premises, the court referred to the Supreme Court of India

decision in Olga Tellis v Bombay Municipal Corporation AIR11 to substantiate the

view that the right to life is more than “mere animal existence”; it includes the right to



5 449.

6 449.

7 449.

8 452.

9 449, 451.

10 451.

11 1986 SC 180.


3

livelihood.12 In this part of the decision, the court confirmed that the issue of begging

raises a direct tension between a non-property constitutional right, namely the right

to life, and property rights, adding that property rights must give way to protection of

the right to life.13 The right to life and human dignity are the most important of all

human rights and they must be valued and protected.14 The court refused to grant a

prohibition against entry on the premises because, among other reasons, the

respondents required access to the premises for begging purposes.

The second part of the decision in Victoria and Alfred Waterfront shows that the

right to exclude is limited by the fact that exclusion of the respondents would amount

to a limitation of their non-property constitutional right to freedom of movement.15

The applicants’ right to exclude and the respondents’ freedom of movement are both

limited. The court recognised that the applicants have a right to protect their custom

and business interests as well as an interest in the physical integrity and security of

their customers.16 However, effective protection of this right does not justify a blanket

exclusion of the respondents. The court had to resolve the conflict between the

landowners’ right to exclude (property rights under section 25) and non-owners’ non-

property constitutional rights, namely freedom of movement, in a way that vindicates

both rights to the greatest extent possible.17 The court concluded that this could be

12

Victoria and Alfred Waterfront (Pty) Ltd and Another v Police Commissioner, Western Cape and

Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA 444 (C) 448. See also Liebenberg S

Socio-economic rights: Adjudication under a transformative constitution (2010) 122-123.



14 448.

15 451.

16 452.

17 452.


4

achieved by a prohibition of specified unlawful behaviour on the premises rather than

a blanket prohibition against access to the premises.18

In Victoria and Alfred Waterfront the court to some extent followed the

reasoning of the US Supreme Court in PruneYard Shopping Center v Robins.19 The

Supreme Court had to decide whether state legislation required the owners of

PruneYard Shopping Center to allow access to people who want to exercise their

right of freedom of speech and petition inside the shopping centre. The majority

confirmed that the right to exclude others from property is one of the essential sticks

in the bundle comprising ownership. However, the PruneYard Shopping Center

owners had failed to show that the exclusion of non-owners was important to the use

or economic value of their property. This resulted in the landowners’ right to exclude

being limited in favour of others’ right to exercise free speech and petition rights on

privately owned property. In both cases, the respective courts rejected the claim that

private owners of premises that are generally open to the public have an absolute

right to exclude persons who have been causing a nuisance on their premises. The

outcome in both decisions was to uphold a limitation of the right to exclude others so

as to secure a non-property constitutional right.

The Victoria and Alfred Waterfront case is interesting for a number of reasons.

Firstly, the court did not decide the case simply based on the property rights,

particularly the right to exclude, of the owners. Instead, the court ruled in favour of

the respondents, based on their non-property rights that are protected under the

18



19 447 US 74 (1980).


5

Constitution.20 In other words, the right to exclude was not upheld absolutely. The

court did not abolish the common law right to exclude, but limited its exercise so as

to protect non-property constitutional rights of members of the public. Therefore, one

might conclude that members of the public have a right of reasonable access to

quasi-public premises under certain circumstances and the landowners’ right to

exclude is limited accordingly.21

Secondly, the case involved a clash between the landowners’ right to exclude

and non-owners’ non-property constitutional rights, namely the right to life, human

dignity and freedom of movement. The court’s decision not to issue a blanket

prohibition upon entry and freedom of movement ensured that the respondents have

access to the premises for life-supporting activities such as begging, which is

encompassed in the right to life. The case thus confirmed the importance of the right

to life and human dignity. In view of the court’s decision, when there is a direct

tension between the right to life and human dignity and the right to exclude, the latter

is not absolute. In such instances, the right to exclude must give way to protect the

right to life and human dignity, which are regarded as unlimited rights.22 The right to

exclude is thus subject to limitations, even without a balancing process, because the

20

The court had to consider whether prohibition from entering the premises would offend against the

entrenched constitutional provisions guaranteeing the right to life (section 11) and the right of freedom

of movement (section 21(1), (3)). See Victoria and Alfred Waterfront (Pty) Ltd and Another v Police

Commissioner, Western Cape and Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA

444 (C) 451.

21 Singer JW Introduction to property (2

nd ed 2005) 30-32.

22 Van der Walt AJ “The modest systemic status of property rights” (2014) 1 Journal for Law, Property

and Society 15-106 45, 62; Currie I & De Waal J The bill of rights handbook (6th ed 2013) 250-253,

258-259.


6

non-property constitutional rights to life and dignity are unqualified rights that cannot

be balanced against property rights.23

A third point of interest is the court’s distinction, albeit not explicitly stated,

between non-property constitutional rights that are unlimited, such as the right to life

and dignity, and those that are subject to limitations and statutory regulations, such

as the right to freedom of movement. The difference is relevant because when the

right to exclude clashes with unlimited non-property constitutional rights, like life and

dignity, the right to exclude must simply give way to secure these rights. On the other

hand, when the right to exclude clashes with other regulated non-property

constitutional rights like freedom of movement, a balancing approach is usually

adopted to determine the most suitable outcome.24

The Victoria and Alfred Waterfront decision provides a good illustration of some

of the issues relating to non-owners’ right to be on someone else’s land for various

purposes and the effect that those rights have on landowners’ right to exclude. The

decision confirms that the right to exclude is not absolute; instead, it is subject to

limitation by law, and in particular by the Constitution. The decision also shows that

courts take into account the nature of the property involved in a dispute concerning

access rights and exclusion, as well as the circumstances of the relevant parties.

This is an indication that context plays a role in considering whether a landowner can

in fact exercise his right to exclude. Other relevant considerations include the

strength of the right to exclude; statutory or legal recognition of access rights to land;

23

In the part of the decision dealing with the right to freedom of movement, the court does seem to

engage in a balancing process. See Chapters 3 and 5 below.


and Society 15-106 62-63.


7

when and how the right to exclude is limited; reasons for the limitation; and whether

the effect of a limitation is proportionate.

1 2 Outline of the research problem and hypotheses

1 2 1 Outline of the research problem

Different perceptions of the right to exclude as a legal concept and its relevance to

the ownership of property appear from academic literature and, most importantly,

from court decisions. In decisions of the United States Supreme Court25 the right to

exclude is often expressed by the metaphor that “a man’s home is his castle”.26

Singer states that the metaphor suggests a traditional patriarchal image of the family

with a single head of household, who is a man in his roles as husband, father, and

owner.27 The metaphor can be understood in line with Blackstone’s notion of

ownership as “sole and despotic dominion”, which represents an absolute

conception of the owner’s right to exclude.28 This metaphor theoretically makes the

right to exclude the hallmark of privately owned land, suggesting that an owner is in

control of the land and, by implication, all who enter or live on it. In the South African

context, Cowen also refers to the castle metaphor in the context of a sectional title

25

An overview of the US academic literature and case law indicates that scholars and judges have

made a great attempt to define the meaning of the right to exclude and to determine its nature,

content and importance, mainly with regard to the ownership of private property.

26 Alexander GS & Peñalver EM An introduction to property theory (2012) 130; Peñalver EM “Property

metaphors and Kelo v New London: Two views of the castle” (2006) 74 Fordham Law Review 2971-

2976 2972; Singer JW “The ownership society and takings of property: Castles, investments, and just

obligations” (2006) 30 Harvard Environmental Law Review 309-338 314, 317-318.

27 Singer JW “The ownership society and takings of property: Castles, investments, and just

obligations” (2006) 30 Harvard Environmental Law Review 309-338 314.

28 Peñalver EM “Property metaphors and Kelo v New London: Two views of the castle” (2006) 74

Fordham Law Review 2971-2976 2972.


8

owner’s home, describing this metaphor as something that is strongly

individualistic.29

The US Supreme Court has stated that the right to exclude is a fundamental

element of the constitutional right to private property.30 In some of the early US

Supreme Court decisions, the landowner’s right to exclude appears generally to be

privileged over non-owners’ access rights.31 Blackstone’s conception of property as

“sole and despotic dominion” appears to have had a formative influence on this idea

of private property, since many American scholars perceive property as an absolute

and exclusionary right.32 A strong focus has thus been placed on exclusion as a core

entitlement of ownership in the US literature, resulting in guidelines pertaining to the

extent to which an owner can exercise his right to exclude and what the right

entails.33

In English law, the right to exclude is also perceived to be of the highest order

of property.34 The “gated community” is sometimes used as an example to illustrate

the link between the understandings of exclusion at the root of property and

29

Cowen D New patterns of landownership: The transformation of the concept of ownership as plena

in re potestas (1984) 23-24.

30 In Kaiser Aetna v United States 444 US 164 (1979) 176, 180 the court held that the right to exclude

is the most essential stick in the bundle of rights. See also Loretto v Teleprompter Manhattan CATV

Corp 458 US 419 (1982) 433, 435; Nollan v California Coastal Commission 483 US 825 (1987) 832.

See further Alexander GS The global debate over constitutional property: Lessons for American

takings jurisprudence (2006) 93 (with reference to footnote 180).

31 Kaiser Aetna v United States 444 US 164 (1979); Loretto v Teleprompter Manhattan CATV Corp

458 US 419 (1982); Nollan v California Coastal Commission 483 US 825 (1987).

32 Blackstone W Commentaries on the laws of England book ll (5

th ed 1773) 2.

33 In US literature, it is often claimed that the right to exclude is essential to property. See Cohen MR

“Property and sovereignty” (1927) 13 Cornell Law Review 8-30 12; Merrill TW “Property and the right

to exclude” (1998) 77 Nebraska Law Review 730-755. See Chapter 2 section 2 2 2 below.

34 Penner J The idea of property in law (1997); Cowan D, Fox O’Mahony L & Cobb N Great debates in

property law (2012) 8.


9

everyday lives.35 The “gate”, in both a literal and metaphorical sense, operates as a

protective measure against entry by non-owners.36 In this sense, property is

generally understood as a tool of exclusion that the owner can use to prevent non-

owners from gaining access to privately owned land.

In South African law, the right to exclude also plays a major role in the way

people relate to their land, especially private land. The right to exclude makes it

possible for individuals to define themselves as owners by excluding non-owners

from their land. Van der Walt argues that the right to exclude is traditionally regarded

as one of the strongest entitlements that a landowner possesses.37 Ownership is

said to be exclusive in its nature and in the absence of any agreement or other legal

restriction to the contrary, it entitles the owner to claim possession from anyone who

cannot set up a better title to it, to warn him off the property, and have him ejected

from it.38 In the context of the rei vindicatio, only the owner has a right to vindicate.

This makes the right to exclude the strongest entitlement of ownership. These

perceptions of ownership and exclusion suggest that in general, the right to exclude

is upheld unless it is limited justifiably.

According to the South African doctrinal notion of ownership, ownership entitles

the owner to do with his property as he pleases, unless the right is somehow

justifiably restricted by law. However, the Victoria and Alfred Waterfront decision and

35

Cowan D, Fox O’Mahony L & Cobb N Great debates in property law (2012) 10.

36 10.

37 Van der Walt AJ Constitutional property law (3

rd ed 2011) 296; Van der Walt AJ “Enclosed property

and public streets” (2006) 21 South African Public Law 3-24 20. See also Gray K “Property in thin air”

(1991) 50 Cambridge Law Journal 252-307; Cohen FS “Dialogue on private property” (1954) 9

Rutgers Law Review 357-387 370.

38 Maasdorp AFS Maasdorp’s Institutes of South African law volume ll: The law of property (10

th ed

1976 edited and revised by Hall CG) 83.


10

similar examples suggest that the relationship between the right to exclude and

access rights to land is in fact more complex. The law sometimes grant non-owners

access rights to land for a specific purpose and this right can place substantial

limitations on the landowner’s right to exclude, thereby rendering the element of

exclusivity more relative and contextual than a first impression might suggest.

Limitations of owners’ right to exclude may originate in different sources of law,

for different reasons. Generally, and leaving consent aside for the moment, such

limitations can have any of three origins. Firstly, limitations can originate in the

Constitution, resulting in court orders to protect non-owners’ non-property

constitutional rights, such as the right to life, human dignity and equality. Secondly,

limitations often originate in statutory law; legislation enacted to give effect to non-

property constitutional rights and legislation not directly enacted to give effect to a

non-property constitutional right sometimes impose limitations that prevent the owner

from excluding non-owners from his land. Finally, non-consensual access rights are

sometimes granted to non-owners on the basis of common law principles. In all

these instances, limitations are imposed on the right to exclude by law without the

consent of the landowner.

If limitations on the right to exclude derive from different sources, for different

reasons, it might be an oversimplification to take the right to exclude as the starting

point and view all access rights as exceptions.39 This might also be an indication that

the whole exclusion argument is not just a question of which right is important; the

right to exclude or access rights. The Victoria and Alfred Waterfront decision

39

See Chapters 2 and 3 below.


11

suggests that some access rights might in fact be constitutionally stronger than, and

prior to, property or the right to exclude.40

Therefore, it is necessary to consider whether limitations deriving from different

sources, for different reasons, might relate to the right to exclude in different ways.41

This would complicate the question whether access rights, and the limitation they

place on the landowner’s right to exclude, are justified. It therefore becomes

necessary to reconsider the justification issue from a constitutional perspective.42

The first question that emerges from the constitutional perspective is whether it

is necessary, as the absoluteness approach assumes, to justify the existence of all

limitations on the right to exclude.43 If the limitations derive from constitutionally

stronger and prior rights, justification might be unnecessary. However, even then, the

effect of these limitations will have to be justified, but that is a different question, as

appears below.

A deprivation of the right to exclude may result when the law limits the right to

exclude or when a court grants (in accordance with the law) access rights to land

without the landowner’s consent.44 This could have implications for section 25 of the

Constitution,45 which provides for the protection of property rights. In this regard, the

question is whether a deprivation occurs when the law imposes limitations on the

right to exclude, for example by granting non-owners access rights to land, with the 40

See Chapter 3 below.

41 See Chapters 3 and 5 below.

42 See Chapter 4 below.


44 For example, a forced transfer may take place when a right of way of necessity is granted by court

order or when (in exceptional cases) a court orders a servitude to be registered in favour of the

encroacher in encroachment cases. See Van der Walt AJ Constitutional property law (3rd

ed 2011)

346-347.

45 The Constitution of the Republic of South Africa, 1996.


12

effect that the landowner is deprived of his right to exclude non-owners from his land;

and whether the deprivation complies with the requirements in section 25(1) of the

Constitution. Accordingly, the limitation of property brought about by granting access

rights to land must be properly authorised and justified to qualify as a constitutionally

valid limitation of the landowner’s right to exclude.

Access rights that are granted to non-owners by law may constitute a limitation

of the landowner’s right to exclude. The objective of this study is to do a

constitutional analysis of the competing rights of landowners and non-owners, with

particular focus on instances where access rights are granted by law to non-owners

without the landowner’s permission and against his will, so as to determine to what

extent the landowner’s right to exclude is validly and justifiably limited. Accordingly,

the aim is to reconsider the notion of absoluteness and the supposed centrality of the

right to exclude from the perspective of a constitutional analysis.

However, to conclude that the right to exclude is not absolute when it is limited

by law would be trite because it has long been recognised that lawfully imposed

access rights place limitations on property rights.46 To take the analysis further than

this trite conclusion, this dissertation proposes three strategies. Firstly, a theoretical

analysis of the issues is introduced to gauge the depth and force of the doctrinal

assumption that exclusion is central to property rights.47 Secondly, the sources and

nature of access rights are highlighted in an effort to establish whether some access

rights are stronger than others or, conversely, whether the right to exclude is weaker

in certain contexts.48 Finally, a constitutional perspective on exclusion and access is

46





13

proposed so as to reduce the impact of the notion of absoluteness in private law

doctrine.49

1 2 2 Hypotheses

The first hypothesis of this dissertation is that the impression created in doctrinal

literature, namely that ownership is absolute and exclusionary, is misleading at

best.50 The right to exclude is portrayed as the core entitlement of ownership, with

the effect that an owner of private property can exclude others from his property,

apparently without any inherent limitations. It is acknowledged that the right to

exclude may in fact be limited, inter alia in instances where the law grants non-

owners access to privately owned land for specific reasons, without the landowner’s

prior permission or consent.51 However, according to the literature such limitations

on the right to exclude are constitutionally justified only if there are fundamental

normative, pragmatic or otherwise legitimate reasons for them.

The second hypothesis is that the relationship between rule and exception,

between exclusion and access rights, is more complex than the literature suggests. If

access rights that limit the landowner’s right to exclude are in fact constitutionally

justified, the right to exclude cannot necessarily be regarded as absolute and access

rights might create inherent limitations, at least in some instances. In this case it

might appear that property rights are in fact not absolute and that exclusion is not

central to property. This hypothesis is particularly relevant in a constitutional

perspective, where private property is not the only (or even a dominant) value.

49





14

The third hypothesis is that theoretical, doctrinal and constitutional analysis

would indicate that exclusion is neither absolute nor central to property and that

access rights imposed by law in fact impose a wide range of limitations on the right

to exclude, often for overriding, non-property reasons that are justified by the broader

constitutional scheme.52

1 3 Overview of chapters

The central questions considered for purposes of this dissertation are: what does the

right to exclude entail? How and to what extent do access rights to land granted by

law limit the landowner’s right to exclude? Are these limitations theoretically,

doctrinally, and constitutionally justifiable, and what does justification entail? These

questions are addressed in subsequent chapters.

As a point of departure it is necessary to distinguish the different meanings of

the notion of absolute ownership and to ascertain how each meaning relates to the

right to exclude. Therefore, the discussion in Chapter 2 is informed by theoretical

and doctrinal (traditional and pre-constitutional) perceptions of ownership in general

and the right to exclude in particular. The goal of Chapter 2 is to analyse and assess

theoretical and doctrinal arguments in favour of the idea that ownership and the right

to exclude are absolute. To understand the theoretical justifications for limitations

imposed on the right to exclude one must firstly look at property theories, particularly

the exclusion theory, that support the right to exclude non-owners from land in the

strong, absolute sense. These justification theories are considered briefly to cast

some light on the role, scope and supposed primacy of the right to exclude.

Exclusion theorists view the right to exclude as the essential or core right of

52



15

ownership that must be strongly upheld and protected. In instances where the right

to exclude is inevitably limited, the limitations are regarded as exceptional.

Secondly, it is necessary to consider theoretical arguments that support and/or

explain general justificatory grounds for limiting the right to exclude, to ascertain why

in some instances, if not all, access rights are enforced against the landowner’s will.

An analysis of the theoretical justifications in this context provides normative

justificatory arguments53 for limiting the right to exclude, primarily in situations where

access rights are granted to non-owners, taking into account the different origins of

limitations. These arguments are often advanced by progressive property theorists,

who argue against the view that exclusion is the core of property and that non-

owners should respect the “gate-keeping function” of property.54 This perspective, for

example, includes the notion that landowners have an obligation, sometimes referred

to as “the social-obligation norm”, to allow non-owners access over or onto their

land. The progressive property theorists’ arguments present a qualified view of

absolute ownership and the right to exclude. It is important to establish whether

access rights are merely exceptions.55 Chapter 2 therefore also provides an

explanation for deviations from exclusion rules, and hence the move towards so-

called governance rules, in an attempt to assess the weight of the justifications for

53

As Lucy WNR & Barker FR “Justifying property and justifying access” (1993) 6 The Canadian

Journal of Law and Jurisprudence 287-318 287 explain, “normative justifications refer to arguments of

a broadly normative nature which provide reasons why either private property or access should be

taken seriously, or regarded as compelling considerations in practical deliberation”.

54 Such progressive theorists include GS Alexander, EM Peñalver, LS Underkuffler, and JW Singer.

55 On the one hand Smith HE “Exclusion versus governance: Two strategies for delineating property

rights” (2002) 31 Journal of Legal Studies 453-487 argues that governance exceptions (for current

purposes, access rights) exist at the periphery. On the other hand, Alexander GS “Governance

property” (2012) 160 University of Pennsylvania Law Review 1853-1888 argues that access rights are

not just exceptions that appear at the periphery but rather that they appear at the core of property.


16

limiting the right to exclude.56 Different perspectives on governance strategies might

be relevant when assessing the general theoretical justifications for limiting the right

to exclude.

A brief historical background is necessary to show how ownership, and

especially the notion of absolute ownership, relates to the right to exclude.

Therefore, it is necessary to consider doctrinal views regarding ownership in South

African law. The most accepted definition in South African law is that ownership is

the most complete real right a person can have over a thing, allowing him to use it in

any way not prohibited by law. In view of this definition, a landowner is allowed to

exclude others from his property unless he is prohibited from doing so by law.

The question arises whether a landowner’s right to exclude can be said to be

protected and upheld strongly, considering that the law may impose limitations in the

form of access rights granted to non-owners. The nature and scope of access rights

that limit the right to exclude is discussed in Chapter 3, starting out from the premise

that if non-owners are allowed by law to have access to privately owned land without

the landowner’s permission or against his will, it is possible that in these instances

the landowner’s right to exclude may in fact be limited. This chapter considers

examples of limitations that are imposed on the right to exclude. The objective of this

chapter is to examine the origins (sources of law) of limitations of the right to

56

Smith HE “Property is not just a bundle of rights” (2011) 8 Econ Journal Watch 279-291 285; Smith

HE “Exclusion versus governance: Two strategies for delineating property rights” (2002) 31 Journal of

Legal Studies 453-487 455 describes governance rules as those that are implemented by making

exceptions, for example by way of contracts, servitudes or land-use regulations that open up avenues

for non-owners to have rights of access to land. Alexander GS “Governance property” (2012) 160

University of Pennsylvania Law Review 1853-1888 1855-1886 has a different interpretation of

governance, namely that it refers solely to the relationship between individuals who have a property

interest in an asset. Accordingly, his idea is that governance rules regulate ownership’s internal

relations.


17

exclude, pertaining to different types of land, in terms of different kinds of access

rights (including their purposes), and the effect that those access rights have on the

landowner’s right to exclude. The purpose of this overview is to show that all

limitations on the right to exclude can in fact not be regarded as exceptional,

considering the wide range of these limitations as well as their origins, their

underlying justifications, their nature and their effects.

The analysis in Chapter 3 shows that there are three origins of limitations of the

right to exclude. In the first instance, limitations on the right to exclude are imposed

on the basis of direct, non-property constitutional rights. These limitations are

considered mainly with reference to case law that highlights the justification for and

the extent of the limitations. The case law involves a clash between landowners’ right

to exclude and non-owners’ non-property constitutional rights, namely the right to

life, human dignity and equality. This tension is interesting when landowners want to

exercise their right to exclude non-owners but are prevented from doing so by law to

ensure that non-owners have access to land for life-supporting activities like

begging. The central question is whether the exclusion of non-owners is justified in

these circumstances. Case law from foreign jurisdictions is analysed to determine

how these jurisdictions deal with the clash between the right to exclude and non-

property constitutional rights.

In the second instance, limitations are imposed on the basis of legislation

implementing state regulation that limits the landowner’s right to exclude. Both

legislation enacted to give effect to a non-property constitutional right and legislation

not specifically enacted to give effect to a constitutional right sometimes create

statutory rights that allow non-owners to be on land without the landowner’s

permission. Foreign legislation is considered in this chapter to identify examples of


18

statutory access rights that limit the right to exclude for constitutional or policy

purposes.

In the third instance, common law principles governing non-consensual access

rights place limitations on the right to exclude. An example of non-consensual

access rights that is considered in this chapter is the right of way of necessity, which

involves the creation of a non-consensual servitude by operation of law. Another

example is encroachment, which involves the exercise of the court’s discretion to

leave an encroachment in place against compensation, instead of granting a removal

order in favour of the affected landowner.

In all these instances, it is important to consider justifications for limiting the

right to exclude. Therefore, in Chapter 4 I determine whether limitations on the right

to exclude are justified. Justification analysis may involve two types of justification.

The first type of justification analysis considers the justification for a specific limitation

on the landowner’s right to exclude. With reference to the first type of the justification

analysis I investigate the reasons and authority for the imposition of a specific

limitation on the right to exclude. The second type of justification proceeds on the

basis of section 25(1) of the Constitution, which determines whether the effect that

the limitation has on an individual landowner is justified. It is therefore necessary to

consider whether the outcome that results when access rights are granted to non-

owners by operation of law amounts to an arbitrary deprivation of the right to exclude

in terms of section 25(1) of the Constitution. If the deprivation is not arbitrary, it does

not require section 25(1) justification. If the outcome does indeed constitute an

arbitrary deprivation, the question is whether the deprivation in a particular instance


19

can be justified.57 I also consider whether the deprivation amounts to expropriation

that needs to comply with section 25(2) of the Constitution. Accordingly, this part of

the chapter undertakes a constitutional analysis of the justifications for limiting the

landowner’s right to exclude non-owners from land.

In the final chapter I consider the complex relationship between the right to

exclude and access rights, and especially whether the right to exclude should be

viewed in the strong-absolute sense or a qualified sense. I also propose a solution

that reconciles or balances the right to exclude and access rights, to such an extent

that both the non-owners’ and the individual landowner’s interests in land are fairly

recognised and protected. I rely on Dyal-Chand’s58 and Van der Walt’s59 notions of

sharing and on Singer’s60 idea of property and democracy as guidelines to resolve

disputes involving landowners’ right to exclude and non-owners’ access rights.

These ideas may help to clarify some of the uncertainties regarding what the right to

exclude entails, taking into account different contexts (constitutional, legislative and

common law), different types of land and different kinds of access to land and their

purposes. I conclude by emphasising that exclusion is not always the outcome in

disputes concerning the right to exclude and access rights and that access rights are

not always exceptional. Depending on the particular context, the right to exclude can

be stronger or weaker when considered together with access rights to land.

57

The Constitutional Court in First National Bank of SA Ltd t/a Wesbank v Commissioner, South

African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance (FNB)

2002 (4) SA 768 (CC) paras 46, 57-58 established a new methodology, which proposes that all

limitations to property will be regarded as deprivations and tested against the requirements of section

25(1) of the Constitution.

58 Dyal-Chand R “Sharing the cathedral” (2013) 46 Connecticut Law Review 647-723.

59 Van der Walt AJ “Sharing servitudes” 2016 (Forthcoming) 1-77.

60 Singer JW “Property as the law of democracy” (2014) 63 Duke Law Journal 1287-1335.


20

1 4 Terminology

At the outset, it is necessary to make certain terminological points. South African, US

and English legal sources often refer to exclusion as a right or an entitlement. In the

present context of examining what the right to exclude as an entitlement of

ownership entails, it is important to distinguish between a right and an entitlement,

although the two notions are related. Generally, a landowner is said to have a right to

exclude non-owners from his property. It is important to determine in what sense

reference is made to exclusion in each particular legal system. Is exclusion a right or

an entitlement?

A right can be viewed as an entitlement. An entitlement signifies what the

owner may do with his property and gives practical effect to the power of disposition

included in private-law rights.61 The entitlements of ownership determine the extent

of the legal relationship that exists between the owner and his property and between

the owner and others. For example, saying that a landowner has the entitlement to

exclude means that he can prohibit non-owners from entering and using his land

without permission or good legal cause.

The term “entitlement” should also be distinguished from what Honoré refers to

as the “incidents of ownership” that make up the notion of ownership.62 Honoré uses

the term “incident” to refer to a wide spectrum of entitlements, concomitant rights,

61

Van der Vyver JD “Ownership in constitutional and international law” 1985 Acta Juridica 119-146

133; Mostert H The constitutional protection and regulation of property and its influence on the reform

of private law and landownership in South Africa and Germany: A comparative analysis (2002) 174.

62 The words entitlement and incident cannot be used interchangeably. Honoré writes from an English

law perspective that was never strongly influenced by pandectism. Unlike English law, South African

law was greatly influenced by pandectism.


21

functions, obligations, and prohibitions.63 For purposes of this dissertation, the

landowner’s right to exclude can be understood as an entitlement in that it describes

what the landowner may lawfully do with regard to his property. However, the phrase

“right to exclude” is used instead of using the phrase “entitlement to exclude”. The

“right to exclude” is an established term, even though its meaning depends on the

context.

The right to exclude concerns the exclusion of non-owners from permanent,

temporary or continuous access to pass over or be on private, public or quasi-public

land. The nature of the property involved in a particular dispute dealing with the right

to exclude and access rights to land is important. Therefore, this dissertation

determines the extent of the limitation on the right to exclude with reference to three

types of land, namely private, public and quasi-public land. Private land refers to land

that is owned by a private person and that is not open to the public, or that is subject

to restricted access by non-owners for a specific purpose. In contrast, the term

“public land” refers to land that is owned by the government or the state for public

use or in any other way that implies either general or restricted public access to it.

The term “quasi-public land” refers to publicly used private land. Gray and Gray

explain that the term “quasi-public” is widely used, particularly in North America, to

denote land that, although nominally subject to private property rights, has been

63

Honoré argues that the incidents of ownership are those legal rights, duties and other incidents

which apply, in the ordinary case, to the person who has the greatest interest in a thing admitted by a

mature legal system. See Honoré T Making law bind: Essays legal and philosophical (1987) 161. The

original version was published as Honoré AM “Ownership” in Guest AG (ed) Oxford essays in

jurisprudence (1961) 104-147. See also Van der Vyver JD “Expropriation, rights and entitlements and

surface support of land” (1988) 105 South African Law Journal 1-16 8; Van der Walt AJ “Rights and

reforms in property theory – A review of property theories and debates in recent literature: Part lll”

1995 Tydskrif vir die Suid-Afrikaanse Reg 493-526 511.


22

opened up to a public use zone.64 In such instances, the land loses its purely private

character because of the general invitation of the public to have access to the land

and it acquires a public character.65

In Chapter 2 I use the term “ownership”, which is defined in South African law

as the most complete real right a person can have or exercise over a thing insofar as

is not prohibited by law. This definition informs the doctrinal view discussed in

Chapter 2 where the discussion is focused on the absolutist private law definition of

ownership. This dissertation adopts a constitutional perspective, which means that

the private law focus on ownership only features in Chapter 2 because it is the focus

of doctrinal writing and in case law. Throughout the rest of the dissertation I focus on

“property” in the wide sense, which includes ownership and limited real rights,

because it is more suitable for constitutional analysis.

The examples and case law that I consider for purposes of this dissertation

concern access that a non-owner may or may not have to property that belongs to

another and the right of the landowner that he may or may not have to exclude

others from his property. In Chapter 3 I analyse how access rights and exclusion

pivot on each other. As a starting point, I consider access rights not as an individual

right but in the wide sense, to include public access rights. In some cases this may

not involve actual individual rights to gain access but rather denotes a limitation of

the landowner’s right to exclude.

In instances where I discuss limitations on the right to exclude, I use the term

“limitation” to refer to instances where the law or legal principle prevents a landowner

64

Gray K & Gray SF “Civil rights, civil wrongs and quasi-public space” (1999) 4 European Human

Rights Law Review 46-102 57 (with reference to footnote 65).

65 57 (with reference to footnote 65).


23

from exercising his right to exclude. In Chapter 4 I use the term “limitation” in a

different, technical constitutional-law sense, referring specifically to an action that

constitutes a limitation of a constitutional right. In this sense, a statutory provision

that imposes a limitation (in the general sense) on landowners’ right to exclude

striking workers from industrial premises does not necessarily constitute a limitation

(in the technical, constitutional sense) of the section 25(1) right to property – it would

only do so if the deprivation is for some reason arbitrary, since section 25(1) only

proscribes arbitrary deprivation of property. I use the term in both senses, depending

on the context.

The term “justification” appears in all chapters but with different meanings. In

Chapter 4 I specifically discuss justifications for limiting the right to exclude and what

justification means in different contexts where the right to exclude is limited. In a

general sense, “justification” simply refers to the reason for a limitation. Again, I use

the term in both senses, depending on the context.

1 5 Qualifications

This dissertation is confined to an assessment of the limitations imposed on the

landowner’s right to exclude by access rights that non-owners may have, based on

the operation of law, without the landowner’s permission. Therefore, I consider

examples and case law largely limited to land and access to land.

I do not attempt to discuss all the relevant case law or all examples concerning

instances in which access rights limit the right to exclude, but only consider a

selection of important and relevant cases and examples. The analysis of examples

and cases on exclusion in foreign law, in particular US, English and Scots law, is not


24

intended to cover or represent all cases from or to discuss the context of those

jurisdictions; they are simply examples of access rights or limitations. The examples

provide a framework within which to assess the different kinds of access rights and

limitations, the different purposes for granting them to non-owners, how conflicting

interests can be resolved, instances when an owner is entitled to exclude, and

whether compensation should be awarded.

In Chapter 2 I consider the Roman-Dutch law notion of ownership, but I do not

undertake a comprehensive discussion of the history of doctrinal thinking or of

Roman-Dutch law.

This dissertation does not provide an extensive discussion of property theories

relating to exclusion. Instead, it refers to specific aspects of specific theories that are

relevant for the analysis. Therefore, I do not write complete overviews of the relevant

comparative law, history of ownership or property theories.


25

Chapter two:

Absolute ownership and the right to exclude

2 1 Introduction

The purpose of this chapter is to explore theoretical and doctrinal perspectives on

the existence of limitations on ownership and specifically on the right to exclude.

Ownership is described as absolute in several distinguishable senses (to indicate

different characteristics of ownership) and only some (or just one) of those meanings

are significant for the right to exclude.

In South African law ownership is usually described as absolute. The idea of

absoluteness can be understood as an indication that ownership is the most

complete real right to distinguish it from limited real rights or that ownership is

unlimited in principle but only insofar as the law allows. Even in these senses,

absoluteness is subject to qualifications. Ownership is not really absolute in either of

these senses because on the one hand, it is limited by limited real rights and on the

other hand, it is limited by law.

Outlining the contours of the right to exclude and its relation to access rights

raises difficult questions about the sphere of property as well as the idea of absolute

ownership. The main question is: what does the idea of absolute ownership mean

theoretically and doctrinally? The unavoidable question is what the implications of

the different meanings of exclusion are. More specifically, the question is whether

the idea of absolute ownership implies that the right to exclude is either absolute as

well or central to ownership. To determine the meaning of absolute ownership and

the right to exclude, a broad overview of the theoretical and doctrinal notions of


26

ownership and exclusion is therefore essential. It is particularly necessary to explore

theoretical arguments, and specifically moral property theories such as Locke’s

labour theory and Hegel’s first occupation theory, to understand the extent to which

they support the idea that the right to exclude is a necessary characteristic of

property. The impact of these theories has to be assessed in view of the ongoing

debate between modern exclusion theorists and progressive property theorists.

Finally, it is also necessary to examine the impact of these theories on the South

African law doctrine of ownership.

Although it is widely agreed that an owner of private property has at least some

right to exclude others from using or interfering with his property, there is

disagreement about how central the right to exclude is to the understanding of

property.1 The right to exclude is presumed to be the starting point for deciding

property law disputes. A contentious issue is whether ownership and the right to

exclude are absolute. The focus of this debate is on the nature of limitations; whether

they are inherent in property or whether they are exceptional to the extent that

limitations are not easily accepted and, if they are accepted, they have to be proven

and justified.

The theoretical literature on exclusion suggests that the notion of absolute

ownership and exclusion can be explained in two parts. The first part is the strong

version of absoluteness, which favours the protection of the right to exclude.

Grounding property in exclusion suggests that ownership and the right to exclude are

absolute. The exclusion theorists’ arguments on property and exclusion portray a

strong view of absolutism in that the landowner can exclude everyone from the

property. Limitations on ownership and specifically on the right to exclude are

1 Merrill TW “Property and the right to exclude” (1998) 77 Nebraska Law Review 730-755 734.


27

accepted but the limitations are seen as exceptions, which have to be proven and

properly justified. This strong version of absolutism does not allow social context or

purely legislative will to limit ownership. Ownership or exclusivity can only be limited

if there are good normative reasons for doing so.

The second part is the qualified view of absoluteness, which supports the claim

that ownership includes a right to exclude but allows for limitations imposed by law.

The progressive property theorists’ arguments offer a qualified view in that they

support a limited property and exclusion right. As a point of departure, the

progressive property theorists assume that ownership and the right to exclude are

free of limitations, but limitations can be imposed by law or by the landowner and will

not be treated as exceptional. It is possible to accept limitations on ownership in

general and on exclusion in particular and, although limitations have to be justified,

the reasons for the limitations are not expected to be normatively strong. These

qualified arguments show that the right to exclude can be subject to significant

limitations on pragmatic and contextual grounds.

Arguments about the idea of absolute ownership and exclusion can also be

assessed doctrinally. From a doctrinal perspective, the starting point is that

ownership is unlimited unless and until the law imposes limitations on it, sometimes

on pragmatic and contextual grounds. In the doctrinal perception of ownership that

dominates South African legal literature ownership, particularly landownership, is

often presented as absolute, exclusive and abstract in nature.2 Context plays no role

2 Van der Walt AJ “The South African law of ownership: A historical and philosophical perspective”

(1992) 25 De Jure 446-457 447; Van der Walt AJ “Roman-Dutch land and environmental land-use

control” (1992) 7 South Africa Public Law 1-11 4; Milton JRL “Ownership” in Zimmermann R & Visser

DP (eds) Southern cross: Civil law and common law in South Africa (1996) 657-699 692-699; Van der

Merwe CG “Ownership” in Joubert WA & Faris JA (eds) The law of South Africa volume 27 (1st


28

in this perception of ownership because the rights paradigm does not reflect context

- rather, it is portrayed as abstract and hierarchical.3 This paradigm has an effect

upon whether and how much ownership (the right to exclude) can be limited or

regulated. In essence, any limitation of the right to exclude is exceptional in the rights

paradigm. In this way, a non-owner’s rights or interests in the property are less likely

to be enforced or favoured over the landowner’s right to exclude. The rights

paradigm creates a presumption in favour of the right to exclude, in that this right

trumps lesser competing rights, such as access rights. Hence, the outcome in any

property dispute is determined by the strong right to exclude, unless non-owners

(with a weaker right) can show why the lesser right (access rights) should prevail and

unless the law imposes limitations on the strong right to exclude.

The rights paradigm therefore seems to present the right to exclude as

absolute, but the fact that a weaker right could prevail once proven shows that

ownership is in fact qualified. In cases involving access rights to privately owned

land, the common law does not always allow a landowner to exclude non-owners,

because the courts refer to non-owners’ access rights as well as the landowner’s

Reissue 2002) 217-355 para 296. In this regard see also Reid K & Van der Merwe CG “Property law:

Some themes and some variations” in Zimmermann R, Visser D & Reid K (eds) Mixed legal systems

in comparative perspective (2004) 637-670 659-660, who state that in the tradition of the ius

commune, ownership at the beginning of the twenty first century is still viewed as absolute, exclusive

and abstract in nature. See also Van der Walt AJ “Developments that may change the institution of

private ownership so as to meet the needs of a non-racial society in South Africa” (1990) 1

Stellenbosch Law Review 26-48 43.

3 According to Van der Walt, contextual issues such as the general historical, social, economic or

political context of the property dispute and the personal circumstances of the parties have no

relevance or effect in the rights paradigm. See Van der Walt AJ Property in the margins (2009) 27-28.


29

right to exclude.4 Therefore, the rights paradigm and the abstract right to exclude do

not feature as strongly in case law as they do in the doctrinal literature.

It is often said that the backbone of the South African common-law system is

that a private landowner can exclude non-owners from his land.5 However, property

is in fact a fundamentally restricted right, with the result that all entitlements of a

particular property holder, particularly the right to exclude, may not necessarily be

upheld. The right to exclude may sometimes be protected in terms of the

Constitution of the Republic of South Africa, 1996 (Constitution)6 but a landowner’s

right to exclude may also be restricted because of the need to protect other rights,

some of which may also be embodied in the Constitution.7 In effect, limitations

imposed on the right to exclude show that this right is not absolute and that context

does play a role in property disputes in that all relevant circumstances are taken into

account in deciding whether a particular limitation is justified.

4 In a leading Constitutional Court (CC) decision dealing with an eviction application, the right to

exclude was upheld when the court ordered the eviction of non-owners from privately owned land. In

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another

2012 (2) SA 104 (CC), even though the court recognised the constitutionally protected non-property

rights of non-owners, the landowner’s rights took precedence. However, in other CC decisions such

as Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); President of the Republic of

South Africa and Another v Modderklip Boerdery (Pty) Ltd and Others 2005 (5) SA 3 (CC) the

landowner’s right to evict has not been allowed to trump the constitutional rights of non-owners, such

as the right to equality and the right to have access to adequate housing.

5 The common law rei vindicatio can be instituted by the owner to reclaim his property from anyone

who is unlawfully in possession thereof. See the discussion below in section 2 3 2.

6 Section 25 of the Constitution of the Republic of South Africa, 1996 protects the owner of property

against deprivation of property, except in terms of law of general application and provided that the law

should not permit arbitrary deprivation.


rd ed 2011) 215; Van der Walt AJ Property and

constitution (2012) 29.


30

Accordingly, this chapter reviews property theories that are sometimes relied on

to support the idea of absolute ownership and the right to exclude; and theories that

qualify both ownership and the right to exclude in view of context. The chapter

further reviews the South African law doctrine of ownership that sometimes might or

might not support the idea of absolute ownership and the right to exclude.

2 2 The idea of absolute ownership and exclusivity: A theoretical analysis

2 2 1 Moral property theories

Arguments in favour of the idea that ownership is absolute, that the right to exclude

is central to ownership, and that limitations of either are exceptional are often

bundled with an appeal to certain property theories. The assumption is that support

from the theories in question would strengthen the claims in favour of exclusivity. In

fact the theories in question sometimes do not provide the necessary support for

exclusion arguments. What follows is not a complete discussion of the relevant

theories or the theoretical debates about them but a brief overview to indicate how

strong or weak the theoretical support is for exclusivity.

The discussion commences with what Van der Walt8 refers to as moral property

theories.9 Moral property theories can be divided into labour (Locke) and first-

occupation (Hegel) theories.10 These theories are often said to offer historical

8 Van der Walt AJ “Property rights, land rights and environmental rights” in Van Wyk DH, Dugard J,

De Villers B & Davis D (eds) Rights and constitutionalism: The new South African legal order (1994)

455-501.

9 The discussion is limited to an analysis of the theories of private property propounded by Hegel and

Locke as justifications for the institution of private property.



455-501 455-456.


31

support for the claims of the exclusion theory in justifying not only the acquisition and

protection of property in general, but also its exclusivity, autonomy and

absoluteness.11 This means that interferences with property should at least be

limited to the minimum to allow the owner to exercise his rights freely and to protect

the owner’s rights and values. The right to exclude is viewed as embodying a host of

important interests that promote human values.12 The values implicated in a private

property institution include but are not limited to autonomy, personhood, privacy,

liberty, and utility.13 An important question in this section is whether the moral- and

value-based arguments for property indeed support an absolute or a relative but

strong right to exclude.

Some natural rights theorists argue that all rights are derived from a conception

of property as “self-ownership”.14 Locke is regarded as the first to make the case for

private property as a natural right of the individual and it remains the standard

justification for private property.15 Natural rights were held to be natural because of

11

Van der Walt AJ “Property rights, land rights and environmental rights” in Van Wyk DH, Dugard J,


455-501 455-456.

12 According to Singer JW Introduction to property (2

nd ed 2005) 25 these interests include exclusive

possession and quiet enjoyment.

13 Dagan H Property: Values and institutions (2011) 46; Singer JW Introduction to property (2

nd ed

2005) 25; Freyfogle ET Bounded people, boundless lands: Envisioning a new land ethic (1998) 97.

14 Ryan A Property (1987) 61. Barnes R Property rights and natural resources (2009) 30 argues that

property as a natural right approach starts from the proposition that individuals have certain essential

rights that derive from their independence and dignity as individuals, as expressed in terms of rights

over self. Such rights arise without the operation of law.

15 Paul EF Property rights and eminent domain (1987) 198; Barnes R Property rights and natural

resources (2009) 30; Alexander GS & Peñalver EM An introduction to property theory (2012) 38-41;

Howe H “Lockean natural rights and the stewardship model of property” (2013) 3 Property Law

Review 36-50 38. Locke J Two treatises of government (reproduced in Laslett P Two treatises of

government: A critical edition with an introduction and apparatus criticus 1963) para 27 states:


32

their historical or moral precedence over legal rights. Locke employed the idea of

there being a “state of nature” in which man’s natural rights are governed by natural

law.16 Consequently, governments were legitimate insofar as they protected natural

rights and illegitimate if they violated them.17

Locke’s theory provides an effort to define the limits of sovereign power. In

terms of Locke’s theory the existence of individual property rights is justified on the

basis of the labour argument, specifically in order to protect those rights against

interference by the sovereign.18 The US Constitution is a classic example of a

property clause that reflects this understanding of Locke’s theory, providing

constitutional protection for life, liberty and property as the parameters of personal

freedom and individuality.19 In this form, the property clause is part of a specific

perception of the social function of property relationships, namely that private

“Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property. It being by him removed from the common state nature placed it in, it hath by his labour something annexed to it, that excludes the common right of other men. For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others”

In this chapter, I do not intend to discuss Locke but rather the claim in secondary literature that his

theory supports a strong exclusion thesis. Therefore, I refer to the secondary literature.

16 Howe H “Lockean natural rights and the stewardship model of property” (2013) 3 Property Law

Review 36-50 38.

17 Ryan A Property (1987) 62.

18 Freyfogle ET Bounded people, boundless lands: Envisioning a new land ethic (1998) 94-95 states

that Locke’s interpretation of the Bible acknowledges that God originally gave earth to humankind as

collective property, yet any individual could seize a piece of land from the common stock and make it

his own simply by mixing labour with it. This seems to suggest that before labour was added, the land

had no value, and once labour was applied, the tilled land gained value and became private property.

On this basis, one gained the right to exclude non-owners from his tilled land.



455-501 461.


33

property forms a guaranteed enclave of individual freedom within which the

individual is shielded from the threats posed by society.20

For Locke, property rights established in a state of nature are both more

determinate in their content and less susceptible to political rearrangement once the

civil government is formed.21 The right to exclude has been identified as the most

important among the rights established within the state of nature.22 An exclusive

property right is derived from the “mixing-labour” argument for property.23 The labour

argument suggests that when a man mixes his labour with something from the

commons, it is by his labour that he acquires something (property), which excludes

the common rights of other men.24 As a result, man acquires claim-rights to the

exclusive possession, use and control, and imposition of correlative duties on all

others not to interfere with the property that he acquired through his labour.25 In this

regard, the right to exclude others becomes important as emphasis is placed on the

individual. From this perspective, Locke is said to have viewed ownership as an

exclusive and unlimited right because it is based on individual labour.

20

Van der Walt AJ “Property rights, land rights and environmental rights” in Van Wyk DH, Dugard J,


455-501 462.


Review 36-50 48.

22 Alexander GS & Peñalver EM An introduction to property theory (2012) 146; Howe H “Lockean

natural rights and the stewardship model of property” (2013) 3 Property Law Review 36-50 38.

23 Mossoff A “What is property? Putting the pieces back together” (2003) 45 Arizona Law Review 371-

444 387-389.


Review 36-50 38; Lucy WNR & Barker FR “Justifying property and justifying access” (1993) 6 The

Canadian Journal of Law and Jurisprudence 287-318 299-300.

25 Lucy WNR & Barker FR “Justifying property and justifying access” (1993) 6 The Canadian Journal

of Law and Jurisprudence 287-318 297.


34

Locke’s labour theory creates the impression that owners should be able to

exclude others from the fruits of their labour. Mossoff notes that Locke’s labour

argument adds the essential element of exclusion to property rights.26 It is labour that

transforms the inclusive claim-rights in the state of nature into exclusive property

rights, which is one of the primary rights civil society is formed to protect.27 To this

extent, Locke’s labour theory strengthens the rights of the individual in that, once an

individual acquires property, he has the right to exclude others from his property.28

Locke’s labour theory justifying private property is also important for promoting

personal autonomy in that it creates a sense of personal freedom and individuality.

Therefore, allowing the landowner to exclude non-owners from private property

ensures that the owner can establish a sphere of personal autonomy and exercise

his unique power of personal autonomy.29

In the same vein, Hegel’s idea of property is said to present the right to exclude

as necessary and essential to property.30 His first occupation theory entails that a

thing belongs to the person who happens to be the first in time to take the thing into

his possession.31 Property is an abstract and indeterminate concept, which

26

Mossoff A “What is property? Putting the pieces back together” (2003) 45 Arizona Law Review 371-

444 388. Lucy WNR & Barker FR “Justifying property and justifying access” (1993) 6 The Canadian

Journal of Law and Jurisprudence 287-318 297 state that an individual acquires private property

through his labour and in so doing, he unilaterally deprives all others of the resource he acquires.


444 389.

28 Alexander GS & Peñalver EM An introduction to property theory (2012) 146.

29 Van der Walt AJ “Tradition on trial: A critical analysis of the civil-law tradition in South African

property law” (1995) 2 South African Journal on Human Rights 169-206 179.

30 Hegel GWF Hegel’s philosophy of right (1952 translated with notes by Knox TM 1967). I do not

intend to undertake an extensive analysis of Hegel, rather I analyse the secondary literature that point

to or deny the fact that Hegel’s first occupation theory provides a strong justification for exclusion.

31 Hegel GWF Hegel’s philosophy of right (1952 translated with notes by Knox TM 1967) 45.


35

emanates from an individual’s will;32 a person has a right of putting his will into any

and every thing, thereby making it his with the absolute right of appropriation that a

person has over all things.33 A thing lacks form until a person embodies it with

human will when he confers a form or concept onto it.34 The thing only becomes

property by virtue of its embodiment with human will or assimilation into one’s

personhood.35 As a result, property acquires the character of private property.36

Hegel identifies three essential phases of property, namely possession, use

and alienation.37 Each of these phases requires that an individual be entitled to

exclude others, at least to some degree.38 The first stage of the human will is to

physically seize the thing into one’s possession and in this regard, taking possession

signifies the human will.39 After physical seizure, the second stage is that of giving

form to something by creating something out of the seized thing.40 In this way, the

will of an individual is identified in the product of his work.41 Since an individual’s will

32

Conklin WE Hegel’s law: The legitimacy of a modern legal order (2008) 119-120.

33 Hegel GWF Hegel’s philosophy of right (1952 translated with notes by Knox TM 1967) 41. See also

Fox O’Mahony L & Sweeney JA “The idea of home in law: Displacement and dispossession” in Fox

O’Mahony L & Sweeney JA (eds) The idea of home in law: Displacement and dispossession (2011) 1-

11 2.

34 Conklin WE Hegel’s law: The legitimacy of a modern legal order (2008) 121.

35 Conklin WE Hegel’s law: The legitimacy of a modern legal order (2008) 121; Fox O’Mahony L &

Sweeney JA “The idea of home in law: Displacement and dispossession” in Fox O’Mahony L &

Sweeney JA (eds) The idea of home in law: Displacement and dispossession (2011) 1-11 2.


37 46.


39 Hegel GWF Hegel’s philosophy of right (1952 translated with notes by Knox TM 1967) 46-47;

Knowles D Routledge philosophy guidebook to Hegel and the philosophy of right (2002) 130; Lucy

WNR & Barker FR “Justifying property and justifying access” (1993) 6 The Canadian Journal of Law

and Jurisprudence 287-318 306.

40 Knowles D Routledge philosophy guidebook to Hegel and the philosophy of right (2002) 131.



36

is used to transform a thing into property, such property belongs in the possession of

the individual as the owner. In other words, the thing is assimilated into one’s

personhood, making the thing his property.

The third stage involves the marking of things with signs.42 An example of a

marking for a private property is a sign saying “No trespassers”. According to Hegel,

this sign indicates that an owner has put his will into the thing, which symbolises that

he is the sole owner and that non-owners should recognise his ownership of the

thing.43 The sign can also be a means of keeping non-owners out of the private

property. This provides an individual owner with the exclusionary powers that

enables him to exclude others from the property interest and this also suggests that

the owner has complete ownership of the property.44

Accordingly, the owner is entitled to the use of his property, to the exclusion of

others. Hegel explains that the use of a thing satisfies the needs of the owner, since

the use reveals the aspect of human will that is displayed in ownership.45 In this light,

the entire use of the thing belongs to the owner and this renders it difficult for another

person to be the owner in an abstract sense. According to Hegel, ownership is

therefore essentially free and complete.46

42

Hegel GWF Hegel’s philosophy of right (1952 translated with notes by Knox TM 1967) 49; Knowles

D Routledge philosophy guidebook to Hegel and the philosophy of right (2002) 131.

43 Hegel GWF Hegel’s philosophy of right (1952) (translated with notes by Knox TM 1967) 49. See

also Knowles D Routledge philosophy guidebook to Hegel and the philosophy of right (2002) 131.



Knowles D Routledge philosophy guidebook to Hegel and the philosophy of right (2002) 132-133.


Knowles D Routledge philosophy guidebook to Hegel and the philosophy of right (2002) 133.


37

Radin relies on Hegel in developing her personhood theory of property.47 Like

Hegel, she focuses on the relationship between property and self-development.48

The underlying premise of the personhood perspective is that, to achieve proper self-

development, a person needs some control over resources in the external

environment.49 For Radin, the necessary assurances of control take the form of

property rights and as a result the protection of property should be enhanced to allow

for personal development.50

47

Radin MJ “Property and personhood” (1982) 34 Stanford Law Review 957-1016. The personhood

theory is further elaborated in some of Radin’s work see, Radin MJ “Market-inalienability” (1987) 100

Harvard Law Review 1849-1937; Radin MJ Reinterpreting property (1993); Radin MJ Contested

commodities (1996). Fox O’Mahony L & Sweeney JA “The idea of home in law: Displacement and

dispossession” in Fox O’Mahony L & Sweeney JA (eds) The idea of home in law: Displacement and

dispossession (2011) 1-11 3 state that the significance of housing and home for Hegelian self-

development and the implication this bears for law and policy, has been mostly developed through

Radin’s concept of property and personhood.

48 Although Radin and Hegel share the same insights, Radin has a different understanding of self-

development. In terms of Radin’s personhood theory, personal property is bound up with an

individual’s personhood in a constitutive sense in that it is part of the way people constitute

themselves as continuing personal entities in the world. Radin rejects Hegel’s initial conception of self

(person) because Hegel conceives the self as merely an abstract unit of free will, which has no

concrete existence until the will confronts the external world. In this regard see Radin MJ “Property

and personhood” (1982) 34 Stanford Law Review 957-1016 959, 971-972. See also Fox L

Conceptualising home: Theories, laws and policies (2007) 299-300; Alexander GS & Peñalver EM An

introduction to property theory (2012) 66.

49 Radin MJ “Property and personhood” (1982) 34 Stanford Law Review 957-1016 957; Clarke A &

Kohler P Property law: Commentary and materials (2005) 54; Fox L Conceptualising home: Theories,

laws and policies (2007) 296; Fox O’Mahony L & Sweeney JA “The idea of home in law:

Displacement and dispossession” in Fox O’Mahony L & Sweeney JA (eds) The idea of home in law:

Displacement and dispossession (2011) 1-11 3. Dagan H “The social responsibility of ownership”

(2007) 92 Cornell Law Review 1255-1274 1259-1260 discusses the relationship between the

justification of control over external resources and their role in constituting personhood.

50 Radin MJ “Property and personhood” (1982) 34 Stanford Law Review 957-1016 957.


38

The necessity to provide constitutional protection for property in such a sphere

of personhood appears from the US Supreme Court decision in Loretto.51 The court’s

strong emphasis on the physical integrity of the property and the property owner’s

right to exclude is clearly linked to the will of the property owner.52 Sharfstein claims

that the pure exercise of exclusion rights has fostered personhood in American

history.53 For instance, a private family home is a smaller sphere of property that

serves the promotion of personhood.54 At the core of Radin’s theory is the idea that

an individual’s attachment to particular property, such as a home, may be so strong

that the particular property becomes constitutive of personhood.55 Personhood is a

more individualistic justification of private property,56 which seems to reflect Hegel’s

idea of an individual’s free will embodied in property.

The permanent physical occupation rule applied in Loretto prima facie appears

to vindicate the owner’s personhood interest.57 However, from a different viewpoint,

and in line with Radin’s treatment of property, the personhood perspective does not

justify the permanent physical occupation rule. Radin treats property owned by

businesses as fungible rather than personal,58 so that even if one assumes that a

51

Alexander GS & Peñalver EM An introduction to property theory (2012) 176.


rd ed 2011) 136, citing Peller G “The metaphysics of

American law” (1985) 73 California Law Review 1151-1290.

53 Sharfstein DJ “Atrocity, entitlement and personhood in property” (2012) 98 Virginia Law Review

635-690 675.

54 Van der Walt AJ “Marginal notes on powerful(l) legends: Critical perspectives on property theory”

(1995) 58 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 396-420 411.

55 Fox O’Mahony L & Sweeney JA “The idea of home in law: Displacement and dispossession” in Fox

O’Mahony L & Sweeney JA (eds) The idea of home in law: Displacement and dispossession (2011) 1-

11 3, 5.

56 Dagan H “The social responsibility of ownership” (2007) 92 Cornell Law Review 1255-1274 1259.


58 See Alexander GS & Peñalver EM An introduction to property theory (2012) 175-176, citing Radin

MJ Reinterpreting property (1993) 153-155. Radin view personal property as property that is


39

building is personal property, de minimis physical invasions, such as the cable

installations at issue in Loretto, might not constitute significant intrusions on personal

identity.59 Generally speaking, a closer connection between property and

personhood warrants stronger property entitlements that deserves constitutional

protection60 and therefore the right to exclude is at least important when and

because it secures personhood.

The moral property theories seem to support the strong view of absoluteness.

Ryan observes that Hegel’s view of property is that the human will is essentially

individual and property therefore essentially private61 in the sense of excluding

others from the property.62 Another person can use the property but only if the owner

decides to alienate his property, thereby disembodying his will.63 Private property

invokes rights against others (non-owners) entailing that, for example, they cannot

have access to or use property in which the will of the owner is embodied without the

owner’s permission.

For Hegel, possession, use and alienation are simultaneously individualistic

and relational. Some authors’ perspective of Hegel’s view on property is that

property is needed by everyone for the development of freedom and personality.64

Hegel does recognise a right to exclude, but because of the relational character

connected with the proper development and flourishing of persons and fungible property as property

that represents interchangeable units of exchange value. See also Radin MJ “Property and

personhood” (1982) 34 Stanford Law Review 957-1016 960, 986.


60 Radin MJ “Property and personhood” (1982) 34 Stanford Law Review 957-1016 986.



63 Hegel GWF Hegel’s philosophy of right 1952 translated with notes by Knox TM 1967) 52.

64 Waldron J The right to private property (1988) 351; Lucy WNR & Barker FR “Justifying property and

justifying access” (1993) 6 The Canadian Journal of Law and Jurisprudence 287-318 304.


40

embodied in his property theory, the right to exclude is not absolute; nonetheless, it

is essential in depicting the nature and extent of private ownership.65 At least from

one reading of Locke’s and Hegel’s property theories, the right to exclude others is

justified, on a moral basis, because it promotes personhood and personal autonomy.

The result is that any limitation of the owner’s right to exclude is exceptional and

immoral except if the limitation is in accordance with the owner’s will. Although these

property theories play an important role in the understanding of property, they should

not be interpreted as an unqualified endorsement of an absolute right to exclude.

2 2 2 Contemporary exclusion theory

A strong-absolute version of ownership and the right to exclude is integral to a set of

more recent exclusion theories. Generally, within the private property system,

ownership of a given resource is assessed on the basis of who can exclude others

from interfering with the resource without the consent of the owner.66 Penner’s

understanding of the right to exclude is expressed in what he refers to as the

exclusion thesis, which means that the right to property is a right to exclude others

from things that are firmly in the owner’s interest to use.67 According to Penner, an

owner has the right to exclude others, and the very idea of property depends on the

assumption that others are to be excluded.68 Epstein argues that the institution of

ownership gives people the right to exclude, not because they will invariably exercise

it, but so that they can select those individuals to whom they will extend permission

65

Alexander GS & Peñalver EM An introduction to property theory (2012) 143.

66 Lucy WNR & Barker FR “Justifying property and justifying access” (1993) 6 The Canadian Journal

of Law and Jurisprudence 287-318 293.

67 Penner JE The idea of property in law (1997) 68-104.

68 74.


41

to enter their property.69 The right to exclude is enforceable against the world, and

permission isolates those individuals who are entitled to use the property subject to

any terms and conditions the owner chooses to impose.

Similarly, Merrill argues that by virtue of simply excluding others, a landowner is

free to determine the use of his property.70 The right of a property owner to exclude

others is not just one of the most essential sticks in the bundle that is seen as

comprising property, but is in fact the “sine quo non” of property. He puts it as

follows:

“Give someone the right to exclude others from a valued resource … and you

give them property. Deny someone the exclusion right and they do not have

property”.71

The conception of property is grounded in exclusion because, while property owners

enjoy various legal rights, the right to exclude is both necessary and sufficient for

identifying the existence of property.72 Merrill advances three arguments in support

of the view that the right to exclude others from one’s property is both a necessary

and sufficient condition of property.73

The first argument is a logical one, that is, if one starts with the right to exclude,

it is possible to derive most of the other attributes commonly associated with

property by adding minor clarifications about the domain of the exclusion right.74

However, the converse is not true: if one starts with any other attribute of property,

69

Epstein RA “Takings, exclusivity and speech: The legacy of PruneYard v Robins” (1997) 64

University of Chicago Law Review 21-56 36.


71 730.

72 731. See also Dagan H Property: Values and institutions (2011) 38-39.


74 740.


42

one cannot derive the right to exclude by extending the domain of that other

attribute. Rather, the right to exclude has to be added as an additional or

independent premise.75 Mossoff rejects this argument and claims that it is not

necessary to start with the right to exclude, but that it is possible to start with other

rights.76

The second argument in support of the primacy of the right to exclude is

historical in nature. Merrill states that there is strong evidence that, with respect to

land, the right to exclude is the first right to emerge in primitive property rights

systems.77 Since it appears that the right to exclude was the first to evolve in time, it

is more basic to the institution of property than other incidents of property recognised

in mature property systems.78 The examples show that the first step in the evolution

of property rights in land was the recognition of the right to exclude and once this

right was established, it was possible to add other rights to the bundle.79

The third argument refers to existing legal practices in a mature legal system to

determine whether the right to exclude is invariably associated with interests

identified as property rights.80 Merrill points out that where the law recognises a right

to property, it confers a right to exclude and this cannot be the same with the other

incidents of property identified by Honoré.81

75

Merrill TW “Property and the right to exclude” (1998) 77 Nebraska Law Review 730-755 740.


444 396.

77 Merrill TW “Property and the right to exclude” (1998) 77 Nebraska Law Review 730-755 745-747.

78 747.

79 746-747.

80 747.

81 See Merrill TW “Property and the right to exclude” (1998) 77 Nebraska Law Review 730-755 747-

752 for examples in this regard.


43

Accordingly, Merrill’s three arguments for the primacy of the right to exclude

support the conclusion that the right to exclude provides the key to the

understanding of the nature of property. This does not in any way suggest that the

right to exclude must be or should be unqualified; it simply shows that if one has the

right to exclude to a certain extent, one has property; if one does not have the right

of exclusion, one does not have property.82 Epstein also argues that it is indeed quite

difficult to conceive of property as private if the right to exclude is rejected.83 The

right to exclude in a private property institution is essential because it tends to favour

stability and predictability.84 This argument suggests that rejecting the right to

exclude, as a central feature, might bring uncertainty to the principles governing the

private property institution.

Exclusion theorists value property’s stability over change. Merrill and Smith

argue that property institutions employ boundaries, which economise on information

costs by delegating most decision making about the exercise of rights to owners.85

Furthermore, they argue, by establishing boundaries and by granting owners the

broad power to control access to property within those boundaries, the institution of

private property rewards people who successfully gather information about the most

82


83 Epstein RA “Takings, exclusivity and speech: The legacy of PruneYard v Robins” (1997) 64

University of Chicago Law Review 21-56 22. See also Bevier LR “Give and take: Public use as due

compensation in PruneYard” (1997) 64 University of Chicago Law Review 71-82 76.

84 Baron JB “The contested commitments of property” (2010) 16 Hastings Law Journal 917-968 940-

952; Lovett JA “Progressive property in action: The land reform (Scotland) Act 2003” (2011) 89

Nebraska Law Review 739-818 750.

85 Merrill TW & Smith HE “What happened to property in law and economics?” (2001) 111 Yale Law

Journal 357-398 389.


44

productive use for the thing they own.86 Interestingly, the economic argument for

individual ownership is sometimes made with reference to the tragedy of the

commons,87 in that, by protecting the right to exclude, social costs or negative

externalities are reduced. Even though negative externalities are reduced, the

possibility of non-owners to negotiate access when transaction costs are low

indicates a qualified but strong version of the right to exclude.

A utilitarian account of property claims that private property maximises human

welfare. Its focus is on welfare maximization in that utility tends to produce benefit,

advantage and happiness for the owner of privately owned land.88 Such an account

appears to favour the right to exclude, given that the landowner has a right to his

property to the exclusion of others. The utilitarian defence of property in any form is

the defence of the legal recognition of ownership as an instrument in promoting the

greatest happiness for the largest number of people, and as such it attaches all the

incidents of ownership to one person.89 In this regard, the right to exclude therefore

enhances utility.

86

Merrill TW & Smith HE “What happened to property in law and economics?” (2001) 111 Yale Law

Journal 357-398 389. See also Alexander GS & Peñalver EM An introduction to property theory

(2012) 136.

87 Ziff B Principles of property law (5

th ed 2010) 14. See also Demsetz H “Toward a theory of property

rights ll: The competition between private and collective ownership” in Parisi F & Rowley CK (eds)

The origins of law and economics: Essays by the founding fathers (2005) 241-262; Hardin G “The

tragedy of the commons” (1968) 162 Science 1243-1248.

88 Bentham J “An introduction to the principles of morals and legislation” in Warnock M (ed)

Utilitarianism: John Stuart Mill (1977) 33-77 34.



45

The economic approach to property is based on the idea that efficiency is a

plausible measure of utility.90 In line with the law and economics argument, the

promotion of economic efficiency is usually advanced as a justification for private

property.91 Efficiency is defined in terms of success in satisfying the wants people

actually have, and the only test of their having those wants is the choices they make

when they are offered them in a marketplace. The efficiency argument founded on

economic analysis of law can be described with reference to the Coase theorem.92

The Coase theorem asserts that where there is a conflict involving property rights,

the parties involved can always successfully bargain for an efficient outcome,

regardless of the initial allocation of property rights, provided that transaction costs

are zero.93 If parties bargain successfully an efficient outcome can be achieved

without government intervention, provided that transaction costs are low. Property

rights are therefore awarded to the party who values them the most. By awarding

property rights to the party who values them the most, the law makes exchange of

rights possible when transaction costs are low.94 Consequently, state intervention (in

the form of enforced access rights) is unnecessary.

90

According to Ryan, utilitarianism justifies private ownership and assesses its merits and defects in

terms of its efficiency whenever it is an aid to the general happiness. See Ryan A Property (1987)

103.

91 Van der Walt AJ “Un-doing things with words: The colonisation of the public sphere by private-

property discourse” 1998 Acta Juridica 235-281 244; Miceli TJ “Property” in Backhaus JG (ed) The

Elgar companion to law and economics (2nd

ed 2005) 246-260 247; Ziff B Principles of property law

(5th ed 2010) 12.

92 The Coase theorem was developed by Coase RH “The problem of social cost” (1960) 3 The

Journal of Law and Economics 1-44.

93 See Coase RH “The problem of social cost” (1960) 3 The Journal of Law and Economics 1-44;

Miceli TJ “Property” in Backhaus JG (ed) The Elgar companion to law and economics (2nd

ed 2005)

246-260 247.

94 Cooter R & Ulen T Law and economics (4

th ed 2003) 98.


46

Efficiency would be maximized when resources are in the hands of those who

would pay most for them. It is only when full liberal ownership is vested in an

individual that efficient outcomes are generated.95 In view of the Coase theorem, the

right to exclude lessens the externality problem by concentrating the costs and

benefits on landowners, thereby providing them with an incentive to employ their

resources efficiently. Accordingly, an unqualified right to exclude is more efficient

because it minimizes the information cost of determining rights.96

In the absence of transaction costs or if transaction costs are low parties are

forced to bargain for an efficient outcome.97 What this means for ownership (the right

to exclude) is that where there is an access claim to land, non-owners can bargain

for access without the intervention of the courts or law. In other words, when

transaction costs are low, non-owners can acquire access rights if they value those

rights.

The conventional economic position provides that the principles governing

property will lean towards efficiency and wealth maximization if several features are

in place.98 Firstly, the law should protect exclusivity of ownership, that is, it should

enforce ownership rights and ensure that exclusive rights cannot be infringed by

anyone else without the landowner’s consent.99 Secondly, the law needs to protect

95

Barnes R Property rights and natural resources (2009) 43.

96 Smith HE “Self-help and the nature of property” (2005) 1 Journal of Law, Economics and Policy 69-

108 78.

97 Coase RH “The problem of social cost” (1960) 3 The Journal of Law and Economics 1-44 1-19;

Miceli TJ “Property” in Backhaus JG (ed) The Elgar companion to law and economics (2nd

ed 2005)

246-260 247; Cooter R & Ulen T Law and economics (4th ed 2003) 85-89.


th ed 2010) 13.


th ed 2010) 13.


47

exclusivity of ownership to spur on productivity,100 for example in cases where the

landowner wants to make improvements on his land. In this regard, the economic

justification of private property is that maximum productivity is promoted.101 In

addition, allowing the landowner to exercise his right to exclude curbs negative

externalities and increases economic efficiency. Posner argues that if a landowner

can exclude others from accessing any given area on his land, the landowner will

endeavour by cultivation or other improvements to maximise the value of his land.102

Rose argues, although not from a law and economics perspective, that the right

to exclude makes private property fruitful by enabling owners to capture the full value

of their individual investments.103 Similarly, Epstein argues doctrinally and not from a

law and economics angle, that once an owner has the right to exclude, the ability to

set the terms and conditions of admission should lead to the optimal use of the

resource for all parties involved.104 Private property rights can therefore also be

justified by their ability to promote economic growth.105

Epstein suggests two possible ways to view the right to exclude.106 In its

stronger sense, the right to exclude is absolute in that no private party can overcome

it unless he procures the consent of the owner. Calabresi and Melamed refer to this

100

Ziff B Principles of property law (5th ed 2010) 13.

101 Cohen MR “Property and sovereignty” (1927) 13 Cornell Law Quarterly 8-30 19.

102 Posner RA Economic analysis of law (8

th ed 2011) 40-41.

103 Rose C “The comedy of the commons: Custom, commerce and inherently public property” (1986)

53 University of Chicago Law Review 711-781 711.



105 Horwitz MJ “The transformation in the conception of property in American law, 1780-1860” (1973)

40 University of Chicago Law Review 248-290 251.




48

as a “property rule”.107 Contrary to the stronger view, the right to exclude could be

regarded as defeasible upon payment of just compensation. In such cases, the right

to exclude is protected only by a “liability rule”, such as that the owner of the right

can be forced to surrender it to an outsider against payment of compensation.108 The

US Supreme Court has held that permanent deprivation of the right to exclude

constitutes a taking of property that must be compensated.109 In this way, the right to

exclude is protected by a “liability rule” when there is a taking of property. Liability

rules allow the courts to coerce exchanges in the allocation of rights when the

transaction costs are high and bargaining is not possible.110 The courts dictate the

conditions under which relief is granted, by replacing the owner’s consent with

compensation in the form of a monetary payment.111 This implies that the US

Supreme Court, although not explicitly, applies the exclusion claim that the right to

exclude should be upheld in property disputes, if necessary by transforming the

property rule into a liability rule. In this context, applying a liability rule suggests that

the right to exclude could be overruled or limited where transaction costs are high

and a desirable exchange is only to be realised by the forcible or involuntary transfer

of property rights. Transforming a property rule to a liability rule in this way, against

compensation, undermines the idea that the right to exclude is absolute.

The strong-absolute view of ownership and the right to exclude is further

illustrated by Merrill’s discussion of three traditions regarding the role of exclusion in

107

Calabresi G & Melamed DA “Property rules, liability rules and inalienability: One view of the

cathedral” (1972) 85 Harvard Law Review 1089-1128.

108 1089-1128.

109 Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982). See also Peñalver EM

“Property as entrance” (2005) 91 Virginia Law Review 1889-1972 1906.

110 Miceli TJ “Property” in Backhaus JG (ed) The Elgar companion to law and economics (2

nd ed

2005) 246-260 249.

111 249-250.


49

property, namely “single-variable essentialism”; “multiple-variable essentialism”; and

“nominalism”.112 The three traditions distinguish between strong and weaker

approaches to absoluteness although Merrill does not argue this point explicitly.

Firstly, the single-variable version of essentialism posits that the right to

exclude others is the irreducible core attribute of property.113 This version is in line

with Blackstone’s conception of ownership as “sole and despotic dominion”.

According to this conception, the right to exclude is both a necessary and a sufficient

condition of property. Blackstone’s conception in a way singles out the right to

exclude as the most essential attribute of property. Such a notion has also been

expressed in the work of Penner and Harris.114 Accordingly, property is not merely

dependent on different rights and duties, but rather the right to exclude is a

necessary, essential characteristic of property.

The single-variable essentialism finds extensive support in the US Supreme

Court decisions involving the government’s attempts to secure access to private

property for a public benefit.115 In a series of cases,116 the US Supreme Court

sanctified the idea that the right to exclude others is essential to the concept of

private property. The characterisation of the right to exclude as essential bears a

connotation of absolutism. In US law, the absolute right to exclude is enshrined in

112

Merrill TW “Property and the right to exclude” (1998) 77 Nebraska Law Review 730-755 735-739.

113 734-735.

114 Penner JE The idea of property in law (1997); Harris JW Property and justice (1996). Cohen’s work

regarding the dialogue on the nature of private property considers a number of attributes that are

commonly associated with property, but he came to the conclusion that only the right to exclude is

invariably connected with all forms of property. See Cohen FS “Dialogue on private property” (1954) 9

Rutgers Law Review 357-387.


116 Kaiser Aetna v United States 444 US 164 (1979); Loretto v Teleprompter Manhattan CATV Corp

458 US 419 (1982); Nollan v California Commission 483 US 825 (1987).


50

the common law. The common law rule is that property owners may exclude others

at will unless they fit in a small class of businesses with a duty to serve the public or

if a civil-rights statute limits their right to exclude.117 In Kaiser Aetna v United

States118 the US Supreme Court first declared the right to exclude a fundamental

element of private property. In this case, a private marina was constructed on the

island of Oahu, Hawaii and connected to a bay with the permission of the Army

Corps Engineers. After the marina was connected to the bay, a dispute arose as to

whether the public had to be given access to the marina under a navigational

servitude. The Army Corps Engineers claimed that certain improvements to the

marina resulted in a navigational servitude, which precluded the pond owners from

denying public access to the pond. The court stated that the right to exclude is

universally held to be a fundamental element of property and that it is one of the

most treasured rights of property. As a result, the right cannot be terminated without

just compensation.119 The court characterised the government’s activity as a physical

invasion of property for which compensation had to be paid. Perhaps this is the most

authoritative decision regarding the position that any physical intrusion in the form of

permanent or continuous access to privately owned land violates the landowner’s

right to exclude.120

117

Singer JW “Property and equality: Public accommodations and the Constitution in South Africa and

the United States” (1997) 12 South African Public Law 53-86 63.

118 444 US 164 (1979) 179-180. According to Singer JW Introduction to property (2

nd ed 2005) 24 in

the United States (US), the right to exclude is characterised as one of the central sticks in the bundle

of rights comprising full ownership.

119 Kaiser Aetna v United States 444 US 164 (1979) 179-180.

120 Callies DL & Breemer JD “The right to exclude others from private property: A fundamental

constitutional right” (2000) 3 Washington University Journal of Law and Policy 39-60 40-48; Singer

JW Introduction to property (2nd

ed 2005) 24.


51

In Loretto v Teleprompter Manhattan CATV Corp121 the court confirmed that the

right to exclude is the pinnacle of property rights. The court held that a New York law

requiring landlords to allow cable companies to install cables and cable boxes on

their buildings constituted a physical invasion. This occurs when the state or

someone acting on its authority physically and permanently occupies someone’s

property.122 The occupation must be direct and permanent.123 A regulation like this

triggers a per se taking irrespective of the slightness of the occupation, the triviality

of the effect or whether there are any compelling reasons for the state’s action.124 In

Loretto, the court held that regardless of the relatively minor intrusion, the

government had authorised a permanent physical occupation of Loretto’s property

and that such a permanent physical occupation is a taking without regard to the

public interests that it may serve. This ruling shows that even if property has other

elements to it, the right to exclude is the core element.125

In Nollan v California Coastal Commission126 the court emphasised the

importance of the right to exclude by extending the protection of the right to non-

121

Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982).

122 Alexander GS The global debate over constitutional property: Lessons for American takings

jurisprudence (2006) 75-76.

123 76.


jurisprudence (2006) 76, 93. In Loretto v Teleprompter Manhattan CATV Corp 458 US 419, 427-431

(1982), the court held that such actions are always takings.


rd ed 2011) 136 explains that the decision in Loretto

illustrates the strong emphasis on the right to exclude others from property as an essential stick in the

bundle that makes up property. This is because of the fact that a physical and permanent invasion of

property was deemed sufficient to constitute a taking of property.

126 Nollan v California Coastal Commission 483 US 825 (1987).


52

permanent physical invasions. The case involved exactions127 that authorised the

public to enter private land over which the owners had previously had an unlimited

right to exclude. The court held that the granting of a building permit that is

conditioned on the dedication of a public right of way constituted an unconstitutional

taking of private property.128 The landowners’ right to exclude was upheld, without

any limitations. The right to exclude is therefore a fundamental aspect of private

property, particularly in land.129 This confirms the common law rule or formalistic

approach to property that grants the absolute right to exclude unless it is limited by

legislation.130 In an earlier publication, Singer explains that, according to tradition and

current constitutional law, the right to exclude is the most central right associated

with property.131 In Nollan, the exaction would have had the effect of restricting the

owner’s right to exclude the public from her land.132 The classical conception of

property suggests that all owners have rights to exclude non-owners, with only a few

exceptions.

127

Exactions are concessions that cities extract from landowners who wish to change the use of their

land in some way and are required to obtain the city’s permission to do so. See Alexander GS The

global debate over constitutional property: Lessons for American takings jurisprudence (2006) 80.

128 Nollan v California Coastal Commission 483 US 825 (1987). See also Neiderbach M “Transferable

public rights: Reconciling public rights and private property” (1989) 37 Buffalo Law Review 899-928

914-915; Alexander GS The global debate over constitutional property: Lessons for American takings

jurisprudence (2006) 37.

129 Callies DL & Breemer JD “The right to exclude others from private property: A fundamental

constitutional right” (2000) 3 Washington University Journal of Law and Policy 39-60 39-40.

130 Singer JW “No right to exclude: Public accommodations and private property” (1996) 90

Northwestern University Law Review 1286-1478 1301.

131 Singer JW “Property and social relations: From title to entitlements” (1995) Metro: Institute for

Transnational Legal Research 1-25 6.




53

The physical invasion reasoning (per se taking) was qualified in PruneYard

Shopping Center v Robins133 because of the need to accommodate the right to

freedom of speech and petition.134 The court held that there was no taking when a

state law required shopping centre owners to permit members of the public to enter

shopping centres for the purpose of distributing leaflets.135 Although the state-

authorised occupation was direct and physical, it was only temporary and as such

did not meet the per se taking requirements. In PruneYard, unlike Kaiser, the right to

exclude was therefore not prioritised by the court. The owners of PruneYard

Shopping Center failed to demonstrate that the right to exclude others is so essential

to the use or economic value of their property that the state-authorised limitation of it

amounted to a taking. The right to exclude was therefore limited to protect the non-

property constitutional rights of the students who were asking people to sign petitions

at the shopping centre.136 The ruling does not prioritise the right to exclude abstractly

and shows the interplay between constitutional rights and private property (the right

to exclude); the importance of context; the nature of property in which the right to

exclude can be exercised; and the qualified nature of the right to exclude.

Secondly, under the multiple-variable version of essentialism, the right to

exclude is a necessary but not a sufficient condition of property.137 This means that

the right to exclude is only part of a list comprising of other entitlements of ownership

133

447 US 74 (1980).

134 Neiderbach M “Transferable public rights: Reconciling public rights and private property” (1989) 37

Buffalo Law Review 899-928 906.



136 PruneYard Shopping Center v Robins 447 US 74 (1980) decision shows that the right to exclude

can be subjected to limitations. A more detailed discussion of this case follows in the next chapter

(Chapter 3).



54

(such as rights of use, enjoyment, and disposal), which are needed to create a

bundle of rights that is sufficient to constitute property.138 The multiple-variable

version can be compared to Honoré’s conception of ownership, which identified the

standard incidents of ownership that provide the most ample conception of property

to be found in a mature legal system.139 Honoré’s idea of property fits in perfectly

with the multiple-variable version of essentialism, in that his explanation of property

does not single out an essential minimum element; this can only be determined by

law in each particular legal system. The multiple-variable version does not regard the

right to exclude as the essence of property or as central to the understanding of

property. Instead, the right to exclude is seen as just another right that contributes to

the make-up of property.

Thirdly, nominalism views property as a purely conventional concept with no

fixed meaning.140 Property is therefore an empty vessel that can be filled by each

legal system in accordance with its peculiar values and beliefs. In line with the

nominalist view of property, the right to exclude is neither a sufficient nor a

necessary condition of property. This means that the right to exclude may be a

characteristic commonly associated with property, but its presence is not essential

and therefore not a fundamental aspect of property. Merrill concedes that there are

other rights associated with property but maintains that the courts in various takings

138


139 Honoré T Making law bind: Essays legal and philosophical (1987) 161.

140 Merrill TW “Property and the right to exclude” (1998) 77 Nebraska Law Review 730-755 737 states

that the nominalist conception can be found in the nineteenth century, although it is basically a

product of the Legal Realist movement of the twentieth century. Furthermore, he states that for the

Legal Realists, property was not defined by a single right or definitive rights, rather as a “bundle of

rights”, which has no fixed core or constituent element.


55

cases have singled out and endorsed the right to exclude as the most essential right

in property.141

It is one thing to say that the right to exclude is the most essential or core right

of property and quite another to say the right to exclude is absolute. None of the

justificatory grounds embodied in moral property theories or in the more recent

exclusion theory indicates that a landowner has an absolute right to exclude. These

theories appear to support a strong but qualified right to exclude. The justifications

support exclusionary practices to some extent, but they also allow for access rights,

and sometimes they even require or recognise non-owners’ access rights.142 Hence,

the same theoretical arguments can justify both landowners’ exclusion rights and

non-owners’ access rights.

2 2 3 Exclusive-use theories

There are some interesting variations on the idea that the right to exclude is the

defining feature of property. Exclusive use theorists such as Katz, Mossoff and

Claeys embrace the idea that some kind of unifying and robust exclusion right exists

at the core of property ownership, but differ with the exclusion theorists on the

ground that the central value that property law protects is not so much a formalistic,

boundary-based right to exclude, but the exclusive authority of property owners to

set agendas about the use to which property can be put.143

141


142 Dagan H “The public dimension of private property” (2013) 24 King’s Law Journal 260-288 284.

143 In this regard see Lovett JA “Progressive property in action: The land reform (Scotland) Act 2003”

(2011) 89 Nebraska Law Review 739-818 751; Mossoff A “What is property? Putting the pieces back

together” (2003) 45 Arizona Law Review 371-444 375; Katz L “Exclusion and exclusivity in property

law” (2008) 58 University of Toronto Law Journal 275-315 275; Claeys ER “Property 101: Is property


56

As opposed to theories that depict the right to exclude as the core of property,

the exclusive use theories conceive property as a right to exclusively determine the

use to which property is put.144 The right to exclude means more than the right of

physical exclusion from privately owned land. The overarching idea of exclusivity is

that the owner holds a monopoly over the rights and entitlements that are recognised

as part of ownership of his property.145 The owner is in a position to make decisions

regarding his property that must be respected by non-owners.146 Katz proposes the

“exclusivity model” to describe her own view and understanding of ownership.147 Her

understanding of the structure of ownership in property law is that its central concern

is not exclusion of all non-owners from the property, but rather the preservation of

the owner’s position as the exclusive agenda setter for the property. Ownership is a

legal concept with a well-defined structure, which derives from its nature an

exclusive right or authority to make decisions about the use of property.148 Even

though ownership is an exclusive right as indicated by the boundary approach, the

right to exclude does not describe the essence of ownership.149 Instead, ownership’s

defining characteristic is that it is the special authority to set the agenda for a

resource - the exclusivity of ownership is just one aspect of ownership’s nature as a

a thing or a bundle?” (2009) 32 Seattle University Law Review 617-650 631; Dagan H Property:

Values and institutions (2011) 39-40.

144 Claeys ER “Property 101: Is property a thing or a bundle?” (2009) 32 Seattle University Law

Review 617-650 618.


th ed 2010) 6.

146 Katz L “Exclusion and exclusivity in property law” (2008) 58 University of Toronto Law Journal 275-

315 argues that the exclusivity associated with ownership means the exclusive right to set the agenda

as to how property is to be used.


315 275, 278.

148 289-293.

149 290.


57

position of agenda-setting authority rather than exclusivity being the essence of

ownership.150 Exclusivity of ownership places landowners in a special position to set

the agenda for the property they own and therefore it is wrong to suggest that the

owner’s right to exclude (gatekeeping function) is the essence of property.151

Property law protects ownership not by upholding an absolute right to exclude others

but by harmonising their interests in the use of the object with the owner’s agenda-

setting authority.152

Similarly, Mossoff claims that, even though the right to exclude is an essential

characteristic of property, it is not a fundamental or sufficient element in the concept

of property.153 Instead, the fountainhead of property is possessory rights, namely the

rights of acquisition, use, and disposal, and the right to exclude is only a corollary of

these three core rights, a secondary or derivate right within the concept of

property.154 This view is contrary to Merrill’s view that the right to exclude is the

starting point and that all other rights are derived from it. In light of Mossoff’s view, it

may be possible to start with any other right like the right to use. In this way, the right

to exclude can be invoked as a protection mechanism when an owner has already

150

Katz L “Exclusion and exclusivity in property law” (2008) 58 University of Toronto Law Journal 275-

315 278, 290.

151 Dagan H Property: Values and institutions (2011) 40.


315 278 argues that the law accomplishes this in two ways: Firstly, familiar property law doctrines,

such as the rules against perpetuities, easement law and finder’s law, carve out a position of authority

for owners that is neither derived from nor subordinate to any other’s. These and other rules create

the institutional structure that permits the owner to function as the supreme agenda setter for the

resource. Secondly, property-related tort law protects the owner’s exercises of authority by obligating

others to act in a way that is consistent with the owner’s actual or imputed agenda. See also Dagan H

Property: Values and institutions (2011) 40.

153 Mossoff A “What is property? Putting the pieces back together” (2003) 45 Arizona Law Review

371-444 376, 392.

154 376, 393.


58

identified his property entitlements. As Mossoff argues, the right to exclude is

therefore only a formal claim.155 Claeys also disagrees with the exclusion theorists’

(Merrill and Smith) idea of reducing ownership to an owner’s right to exclude others

from his property and instead refers to property as a right to determine exclusively

how a thing may be used.156 An exclusive right to use determination justifies the

rights owners have to use the things they own exclusively in a productive way.157

The particular use of the property, therefore, determines whether non-owners can

have access or not because the owner has a more general and exclusive right to

choose how to use his land.158 The exclusive use determination gives conceptual

focus to the “exclusion” in a right to exclude. Claeys argues that “exclusion” is not

necessary to property; it is only a feature of property.159 Property exclusion does not

exclude non-owners from the thing, but rather from the “dominion or indefinite right of

user or disposition” associated with the thing.160

The exclusive use theorists’ arguments differ descriptively from the exclusion

theorists’ arguments. The exclusive use theorists show that exclusion is not always

about physical exclusion, creating boundaries or a simple keep-off message. Rather,

exclusion is an exclusive right to use,161 or to determine the use of the property162 or

155

Mossoff A “What is property? Putting the pieces back together” (2003) 45 Arizona Law Review

371-444 396.


Review 617-650 631.

157 650.

158 637.

159 633.

160 633.

161 Mossoff A “What is property? Putting the pieces back together” (2003) 45 Arizona Law Review

371-444.


Review 617-650.


59

an exclusive right of agenda-setting.163 A landowner has the power to control and

make decisions regarding the use of his property but cannot exclude non-owners.

Exclusive-use decision making can be limited by law (regulation) in specific

instances, depending on the nature of the property and the identity of the owner. The

exclusive use theorists’ conception of property suggests that property is a social

concept, that is, it plays a role in structuring social relations, which is more or less

what the progressive property theorists argue as well. Exclusive-use theory creates

the potential for mutual accommodation with regard to the property, whereas

exclusion theory merely states a particular outcome, a simple keep-off rule.

In a similar vein, Dagan states that property should not be solely about

exclusion or exclusivity and that, at times, inclusion is part of what property is, rather

than being external to its core.164 Dagan is mainly concerned about non-owners’

claim to have access to property. One of the examples he uses is the law of public

accommodations, which is widely recognised as an important limitation on the right

to exclude.165

163

Katz L “Exclusion and exclusivity in property law” (2008) 58 University of Toronto Law Journal 275-

315.

164 Dagan H Property: Values and institutions (2011) 48. See also Kelly DB “The right to include”

(2014) 63 Emory Law Journal 857-924 869. Cohen FS “Dialogue on private property” (1954) 9

Rutgers Law Review 357-387 372 points out that property is not just about the ability of the owner to

exclude but it also enables the owner to grant permission to non-owners to use his property. Private

property presupposes a realm of private freedom: without freedom to bar one man from certain

activity and to allow another man to engage in the activity there would not be property. This private

freedom enables the owner to grant access to non-owners. Cohen was not an exclusive-use theorist

but a realist, who wrote half a century ago and reached a comparable conclusion in the context of the

realist theory.

165 Singer JW “No right to exclude: Public accommodations and private property” (1996) 90

Northwestern University Law Review 1283-1497; Sandoval-Strausz AK “Travelers, strangers and Jim

Crow: Law, public accommodations and civil rights in America” (2005) 23 Law and History Review 53-

94.


60

Dyal-Chand’s notion of a forced sharing of property provides a comparable

theoretical basis for limiting the right to exclude.166 Dyal-Chand proposes an interest-

outcome approach that focuses on sharing instead of exclusion.167 The interest-

outcome approach is a means of resolving property disputes where more than one

legitimate interest exists concerning the use, possession or access to a piece of

property.168 In instances where a dominant tenement owner or an encroacher

demonstrates a need to use the property, such need could be answered through the

enforcement of sharing by the courts. The common law principles dealing with the

enforcement of a right of way of necessity and encroachments appears to be a good

example of an enforced common law sharing remedy. The outcome in disputes

concerning a right of way of necessity or encroachment169 also often amounts to

compelled sharing instead of exclusion. In this regard, the courts focus on the actual

use of the land, the interests of the parties and compensation to construct a sharing

remedy.170 Sharing as a feature of property law ensures mutual accommodation of

rights and interests of the parties involved in a particular dispute.

2 2 4 Progressive property theory and exclusivity

There is currently a robust debate about how too much emphasis on the right to

exclude overshadows the issue of access rights relating to land. On numerous

occasions, scholars have disagreed on whether the right to exclude is the core of

166

Dyal-Chand R “Sharing the cathedral” (2013) 46 Connecticut Law Review 647-723.

167 647-723.

168 676-683 for a detailed explanation of the interest-outcome approach.

169 See especially the Roseveare v Katmer, Katmer v Roseveare and Another (2010/44337,

2010/41862) [2013] ZAGPJHC 18 (28 February 2013) decision where the court ordered the creation

of a non-consensual servitude in favour of the encroacher.

170 See Van der Walt AJ “Sharing servitudes” 2016 (Forthcoming) 1-77 27-28.


61

property. Baron reviews this scholarly debate with reference to two theoretical

approaches to property, which she describes as information theory and progressive

theory.171 The information theorists argue that exclusion (the right to exclude)

constitutes the core of property,172 while the progressive theorists argue that human

relationships and values constitute the core of property. Other scholars in this debate

do not belong to either the information or progressive group, but their arguments are

premised on more or less the basic assumptions.173 The scholarly debate on

exclusion focuses on the extent to which the right to exclude can be exercised (or on

the centrality of its role in property law) and how this affects fundamental human

rights if non-owners are denied access to land.

171

See Baron JB “The contested commitments of property” (2010) 16 Hastings Law Journal 917-968.

The information theorist group is led by Thomas Merrill and Henry Smith, while the progressive

scholars are led by Gregory Alexander, Eduardo Peñalver, Joseph Singer and Laura Underkuffler.

Both groups have made powerful and seemingly irreconcilable claims about the function and

normative value of exclusion rules in property law. For further discussion of the debate see Lovett JA

“Progressive property in action: The Land Reform (Scotland) Act 2003” (2011) 89 Nebraska Law

Review 739-818; Rosser E “An ambition and transformative potential of progressive property” (2013)

101 California Law Review 107-172; Van der Walt “The modest systemic status of property rights”

(2014) 1 Journal of Law, Property and Society 15-106.

172 Lovett JA “Progressive property in action: The Land Reform (Scotland) Act 2003” (2011) 89

Nebraska Law Review 739-818 746 describes this group as “information or formal exclusion

theorists”.

173 In this regard see Lovett JA “Progressive property in action: The Land Reform (Scotland) Act 2003”

(2011) 89 Nebraska Law Review 739-818 750-753. Lovett mentions other voices engaged in the

exclusion debate, which he describes as reciprocity theorists and exclusive use theorists. Hanoch

Dagan and Michael Heller are described as reciprocity theorists (citing Dagan H & Heller MA “The

liberal commons” (2001) 110 Yale Law Journal 549-623; Dagan H “The social responsibility of

ownership” (2007) 92 Cornell Law Review 1255-1273; Dagan H “Takings and distributive justice”

(1999) 85 Virginia Law Review 741-804). Larissa Katz, Adam Mossoff and Eric Claeys are described

as the exclusive use theorists (citing Katz L “Exclusion and exclusivity in property law” (2008) 58

University of Toronto Law Journal 275-315; Mossoff A “What is property? Putting the pieces back

together” (2003) 45 Arizona Law Review 371-443; Claeys ER “Property 101: Is property a thing or a

bundle?” (2009) 32 Seattle University Law Review 617-650; Claeys ER “Virtue and rights in American

property law” (2009) 94 Cornell Law Review 889-947). See the discussion in section 2 2 3 above.


62

The information or formal exclusion theorists (hereinafter exclusion theorists)

rely on the idea that property revolves around exclusion or exclusivity.174 These

theorists argue that the right to exclude is at the centre of the property system

because it consolidates a large number of powers in one property owner, which

sends a simple message to non-owners to keep off.175 Katz argues that exclusion

theorists, like Merrill, propose a model of ownership that emphasises the owner’s

right to exclude non-owners from the property as the central defining feature of

ownership.176 Katz refers to this model as the “boundary or exclusion-based

approach” because it focuses on the owner’s power to decide who may cross the

boundaries of the property. In an exclusion-based (or boundary) approach,

ownership is the product of a norm that protects the boundaries around an object so

as to exclude the whole world except the owner.177 It follows that the owner controls

access to the attributes of the resource within the boundaries, which are his by virtue

of the exclusion of others. The essential feature of the exclusion-based approach is

the power to determine who can enter and who must keep out.178 In effect,

ownership has a gatekeeping function in that property law constructs not a wall but

174

In this regard, see the discussion in section 2 2 2 above.

175 Baron JB “The contested commitments of property” (2010) 16 Hastings Law Journal 917-968 936-

940, citing Smith HE “Exclusion and property rules in the law of nuisance” (2004) 90 Virginia Law

Review 965-1049 984; Smith HE “Property and property rules” (2004) 79 New York University Law

Review 1719-1798 1754. See also Van der Walt AJ “The modest systemic status of property rights”

(2014) 1 Journal for Law, Property and Society 15-106 23.


315 275-276.


315 281. See also Claeys ER “Property 101: Is property a thing or a bundle?” (2009) 32 Seattle

University Law Review 617-650 638 who states that Merrill and Smith construe exclusion to refer to

boundaries and the incidents of control and use protected by boundaries.


315 289.


63

rather a gate, which an owner may open or shut according to his or her

preferences.179 This metaphor is a reminder that property creates power

relationships among people.180

Baron asserts that progressive property theorists attempt to ground the system

of property on values rather than on transaction costs and externalities of

information.181 Progressive property theorists state that “we must look to the

underlying human values that property serves and the social relationships it shapes

and reflects”.182 These theorists focus on the role that property and property law play

in a free and democratic society, and often remark that property rights can be limited

to further the interests of society or to enforce human values.183 This implies that

property is often subject to limitations and obligations to secure these interests and

values. Singer, Peñalver, Alexander, Underkuffler and Purdy propose a democratic

model of property, which recognises that property serves plural values and that the

law should reflect those multiple values.184 The argument that property serves

179

Penner J The idea of property in law (1997) 74.


th ed 2010) 6-7.

181 Baron JB “The contested commitments of property” (2010) 16 Hastings Law Journal 917-968 924.

182 Alexander GS, Peñalver EM, Singer JW & Underkuffler LS “A statement of progressive property”

(2009) 94 Cornell Law Review 743-744 743.

183 Perhaps such scholarly remarks are informed by the US Supreme Court decision in State of New

Jersey v Shack 58 NJ 297 (1971). As Dyal-Chand R “Pragmatism and postcolonialism: Protecting

non-owners in property law” (2014) 63 American University Law Review 1683-1748 1689 puts it: “It is

no small wonder that State v Shack has achieved iconic status in property law, and particularly among

property scholars who identify (or are identified) as progressives.” See also Rosser E “An ambition

and transformative potential of progressive property” (2013) 101 California Law Review 107-172 125,

who gives an indication that the Shack decision has a bearing on the arguments propounded by the

progressive theorists.

184 Singer JW “Democratic estates: Property law in a free and democratic society” (2009) 94 Cornell

Law Review 1009-1062 1046-1047, 1054. See also Alexander GS & Peñalver EM “Properties of

community” (2009) 10 Theoretical Inquiries in Law 127-160; Alexander GS “Pluralism and property”

(2011) 80 Fordham Law Review 1017-1052; Underkuffler LS The idea of property: Its meaning and


64

human values has been extended by several theorists in theoretical literature. For

example, Alexander states that the pluralistic conception of human flourishing means

that property serves multiple values that are incommensurable185 and that give a

person the opportunity to live as fulfilling a life as possible.186 These values include

personal autonomy, individual security, self-development or self-realisation, social

welfare, community and sharing, fairness, friendship and love.187 Dagan also points

out that property law reflects a commitment to not just one value but to multiple

values.188 Furthermore, Singer rejects the idea that the right to exclude is the core of

property or that property should be defined in terms of exclusion. Property is defined

not by reference to a fixed conception but by reference to human values and these

values underlying property rights are various and incommensurable.189 Property

rights implicate values such as individual autonomy, liberty, personal security,

fairness, economic efficiency, social welfare, social justice and human dignity190 and

power (2003); Purdy J “A freedom-promoting approach to property: A renewed tradition for new

debates” (2005) 72 University of Chicago Law Review 1237-1298.

185 Alexander GS “Governance property” (2012) 160 University of Pennsylvania Law Review 1853-

1887 1877; Alexander GS “Pluralism and property” (2011) 80 Fordham Law Review 1017-1052 1036-

1039. See also Dagan H Property: Values and institution (2011) 58-62.

186 Alexander GS “Property’s ends: The publicness of private law values” (2014) 99 Iowa Law Review

1257-1296 1260.

187 Alexander GS “Governance property” (2012) 160 University of Pennsylvania Law Review 1853-

1887 1877.

188 Like Alexander, Dagan also offers a pluralist conception of property, which entails that property is

an umbrella for a set of institutions, serving a pluralistic set of liberal values such as autonomy, utility,

labour, personhood, community and distributive justice. See Dagan H Property: Values and

institutions (2011) 69-74. See also Dagan H “Pluralism and perfectionism in private law” (2012) 112

Columbia Law Review 1409-1446 1412, 1438-1445; Dagan H “Remedies, rights and properties”

(2011) 4 Journal of Tort Law 1-29 3 available online at SSRN: <http://ssrn.com/abstract=1718521>

(accessed on 02-07-2014).

189 Singer JW Entitlement: The paradoxes of property (2000) 37; Singer JW The edges of the field:

Lessons on the obligations of ownership (2000) 1-6.

190 Singer JW Entitlement: The paradoxes of property (2000) 20, 31, 63.


65

accordingly, limitation of the right to exclude by law to advance public access rights

to property or occupancy rights of tenants and farmworkers can be justified by

underlying human values or moral principles - what Singer calls the reliance interest

in property.191

The view that property serves human values seeks to justify limiting the right to

exclude and to strengthen arguments about the social-obligation norm.192 Since

property serves human values and concerns social relations, landowners have

obligations in addition to rights. Alexander has advanced arguments for the social-

obligation norm, in light of the commitment to human flourishing.193 An analysis of

the social-obligation norm paves the way to look at further theoretical justifications

that highlight the relative nature of the right to exclude and justifications for limiting

the right to exclude such as virtue ethics;194 human flourishing;195 democratic

governance;196 and public policy.197

191

Singer JW “The reliance interest in property” (1988) 40 Stanford Law Review 611-751 622.

192 Also known as the social function norm of property.

193 Alexander GS “The social-obligation norm in American property law” (2009) 94 Cornell Law

Review 745-819.

194 Peñalver EM “Land virtues” (2009) 94 Cornell Law Review 821-888.

195 Alexander GS & Peñalver EM “Properties of community” (2009) 10 Theoretical Inquiries in Law

127-160; Alexander GS “Pluralism and property” (2011) 80 Fordham Law Review 1017-1052;

Alexander GS “Governance property” (2012) 160 University of Pennsylvania Law Review 1853-1887;

Alexander GS “Property’s ends: The publicness of private law values” (2014) 99 Iowa Law Review

1257-1296. See also Freyfogle ET “Private ownership and human flourishing: An exploratory

overview” (2013) 24 Stellenbosch Law Review 430-454.

196 Singer JW “Democratic estates: Property law in a free and democratic society” (2009) 94 Cornell

Law Review 1009-1062; Singer JW “Property law as the infrastructure of democracy” (2011) 1-13

available online at SSRN: <http://ssrn.com/abstract=1832829> (accessed on 02-07-2014); Singer JW

“The rule of reason in property law” (2013) 46 University of California Davis Law Review 1369-1434.


nd ed 2005) 39.


66

Property scholars have argued that the social-obligation norm exists in US law.

This norm entails that property owners have social responsibilities to others that

extend beyond the highly individualized conventional account of property rights.198

According to Alexander, the social-obligation norm strongly resonates in two

categories.199 The first category consists of cases in which the landowner’s

entitlements, including the right to exclude, are limited in exchange for monetary

compensation, in other words cases in which ownership entitlements are protected

by liability rules instead of property rules.200 In South African law, an example would

be encroachment cases, where the remedy for removal that upholds the right to

exclude is denied and compensation is awarded instead. Similarly, the courts will

sometimes grant a right of way of necessity without the consent of the servient

tenement but subject to compensation.201 The second category deals with cases in

which the property owner continues to hold title to his property but loses the right to

198

In this regard see Dagan H Property: Values and institutions (2011); Alexander GS “The social-

obligation norm in American property law” (2009) 94 Cornell Law Review 745-819; Purdy J “A

freedom-promoting approach to property: A renewed tradition for new debates” (2005) 72 University

of Chicago Law Review 1237-1298.


Review 745-820 752.


Review 745-820 752, citing Calabresi G & Melamed DA “Property rules, liability rules and

inalienability: One view of the Cathedral” (1972) 85 Harvard Law Review 1089-1128.

201 With regard to the first category, the examples Alexander mentions in his article points towards

something like expropriation. See Alexander GS “The social-obligation norm in American property

law” (2009) 94 Cornell Law Review 745-820 774-782. The two examples in the South African law

context that I mention, namely encroachment and right of way of necessity cases are not examples of

expropriation, although the affected landowners are forced to give up their ownership entitlements,

such as the right to exclude, against compensation. In South African law, there is no common law

authority for expropriation. The authority for expropriation derives exclusively from statutes. In this

regard see, Van der Walt AJ Constitutional property law (3rd

ed 2011) 346, 452-458; Van der Walt AJ

& Raphulu TN “The right of way of necessity: A constitutional analysis” (2014) 77 Tydskrif vir

Hedendaagse Romeins-Hollandse Reg 468-484 483-484.


67

use it in some way because of judicial order or legislative regulation.202 Both these

categories highlight instances in which the right to exclude is limited, without

explicitly citing something like the social-obligation as the justification for this

limitation.

Alexander claims that the social-obligation norm explains and justifies decisions

concerning instances when the right to exclude is limited.203 The social-obligation

norm is shaped by the desire to promote the capabilities204 that are essential to

human flourishing, which refers to the idea that individuals should live lives worthy of

human dignity.205 Imposing a set of obligations on landowners or limitations on

property interests, such as non-consensual transfers and use restrictions, is a means

for promoting human flourishing.206 The social-obligation norm entails that the

landowner must provide the means for others (non-owners or other landowners) to

202

Alexander GS “The social-obligation norm in American property law” (2009) 94 Cornell Law

Review 745-820 752.

203 748.

204 Capabilities refer to the freedom or power to choose to function in particular ways. See Alexander

GS & Peñalver EM “Properties of community” (2009) 10 Theoretical Inquiries in Law 127-160 137,

citing Nussbaum MC Women and human development: The capabilities approach (2000) 87-88.


Review 745-820 748. See also Alexander GS & Peñalver EM “Properties of community” (2009) 10

Theoretical Inquiries in Law 127-160 135 stating that:

“[A]ny adequate account of human flourishing must stress two characteristics. First, human beings develop the capacities necessary for a well-lived, and distinctly human life only in a society with, indeed, dependent upon, other human beings. To put the point even more directly, living within a particular sort of society, a particular web of social relationships, is a necessary condition for humans to develop the distinctively human capacities that allow us to flourish”.


Review 745-819 775-791.


68

flourish if their property bears a sufficient nexus to ensure or to cater for the needs of

others.207

The idea of the social-obligation norm signifies that property rights should have

their share of social responsibility.208 Mirow points out that the notion of the social-

obligation norm contrasts with the idea of absolute ownership and that it has been

used to justify limitations on the use of property by its owner, such as in cases of

expropriation and the redistribution of property through land reform programmes.209

Mirow concludes that the social-obligation theory is important because property

rights are defined and enshrined in constitutions and civil codes.210 An analysis of

the social obligation theory of ownership assists in determining the justification for

limiting the right to exclude; the nature of the concept of ownership;211 and the

appropriate way to reconcile and balance the landowners’ with non-owners’ interests

in land so as to promote human flourishing.

Alexander and Peñalver discuss human capabilities that symbolise well-lived

lives, namely life (including subsidiary goods such as health and security); freedom

(including identity and self-knowledge); practical reason (involving the capacity of

deliberating well about what is good and advantageous for oneself); and affiliation or

207


Review 745-819 780-782, 795-799, 807-808.

208 Mirow MC “The social-obligation norm of property: Duguit, Hayem and others” (2010) 22 Florida

Journal of International Law 191-226 192. See also Alexander GS “Pluralism and property” (2011) 80

Fordham Law Review 1017-1052 1022-1023. See also Crawford C “The social function of property

and the human capacity to flourish” (2011) 80 Fordham Law Review 1089-1134, who argues that the

social function of property can be understood as a notion that aims to secure the goal of human

flourishing for all citizens within any state.

209 Mirow MC “The social-obligation norm of property: Duguit, Hayem and others” (2010) 22 Florida

Journal of International Law 191-226 192.

210 226.

211 Alexander GS “Pluralism and property” (2011) 80 Fordham Law Review 1017-1052 1023.


69

sociality (encompassing subsidiary goods such as social participation, self-respect

and friendship).212 The point they make is that an individual cannot acquire these

capabilities on his own; he is dependent on others to flourish.213 Some degree of

state intervention in resource distribution is required so that non-owners can benefit

from the property institution.214 It is possible to argue, as Alexander does,215 that the

South African Constitution extends the idea of a social-obligation norm because of its

inclusion of an explicit commitment to land reform (the property clause)216 and

provisions that create a number of positive socio-economic rights.217 The land reform

programmes indicate that private property rights are subject to the social needs of

others.218 Furthermore, he argues that the socio-economic rights provisions show

that the landowner’s interests coexist with the constitutional entitlements of non-

owners to basic needs such as housing.219 To this extent, for example, the Extension

of Security of Tenure Act220 as well as provisions in the Prevention of Illegal Eviction

from and Unlawful Occupation of Land Act221 and the Rental Housing Act,222 are

212

Alexander GS & Peñalver EM “Properties of community” (2009) 10 Theoretical Inquiries in Law

127-160 138. See also Alexander GS “The social-obligation norm in American property law” (2009) 94

Cornell Law Review 745-819 765; Alexander GS “Governance property” (2012) 160 University of

Pennsylvania Law Review 1853-1887 1875.


127-160 138.

214 147.

215 Alexander GS The global debate over constitutional property: Lessons from American takings


216 Section 25 of the Constitution of the Republic of South Africa, 1996.

217 For example sections 26, 27, 28 and 29 of the Constitution of the Republic of South Africa, 1996.

Section 26, the housing provision is of particular importance to this study.

218 Alexander GS The global debate over constitutional property: Lessons from American takings


219 161.

220 62 of 1997 (ESTA) gives effect to section 25(6) - legally secure tenure.

221 19 of 1998 (PIE) gives effect to section 26(3) – anti-eviction provision.


70

necessary interventions that support the state’s obligation to impose regulatory

measures on the landowners’ use and control of their land to foster human

flourishing. For purposes of this dissertation, one can say that non-owners require a

degree of access to private, public or quasi-public property to enhance their

capabilities.223 As a result, limiting the landowner’s right to exclude is justified

because the landowner contributes to non-owners’ human flourishing or the

fulfilment of their human capabilities.

In South African law the rights to secure tenure and adequate housing foster a

sense of belonging and also advance the rights to life and human dignity. The

realisation of these constitutional rights will often place limitations on the right to

exclude. In such circumstances, access rights that are backed by the Constitution

cannot be seen as exceptional limitations on the right to exclude but as built-in

elements of the property system. Regulatory measures that limit the right to exclude

to ensure access to land for housing purposes are justified because, in view of the

human flourishing idea, housing is needed for people to live in a healthy environment

and enjoy their right to life. This reasoning is in line with the social-obligation norm or

social function of property, which demands equality, fairness and justice when it

comes to access to land. Therefore, the state has legitimate and justifiable grounds

for granting access rights on privately owned land against the landowner’s will.

222

50 of 1999.


127-160 138 state that freedom, practical reason and sociality can meaningfully exist only within a

vital matrix of social structures and practices.


71

Alexander posits that property rights are inherently relational and as such

owners owe obligations to others, both owners and non-owners.224 From this

perspective, property rights, including the right to exclude, are deeply informed by

the cultural, political and social norms of a given society. For non-owners to flourish

they require access to property and this sometimes requires limiting the right to

exclude of those who own property so as to ensure that human values of non-

owners are guaranteed as well. Excluding others (landowners and non-owners)

means that the development of human flourishing is limited. Indeed, limiting the right

to exclude by granting access to others who seek access to be on or to pass over

private, public or quasi-public land should be viewed as a way of promoting human

flourishing. In line with the human flourishing idea, access rights are so fundamental

that exclusion of non-owners would have to be justified in instances where the

development of human flourishing is dependent on access to land.

Peñalver and Alexander are of the opinion that the social-obligation norm

should guide landowners when making decisions that also accommodate non-

owners.225 Recently, Alexander has argued that ownership of governance property226

224


Review 745-820 747-748. For other writings on the relational aspect of property see also Peñalver

EM “Property as entrance” (2005) 91 Virginia Law Review 1889-1972; Underkuffler LS The idea of

property: Its meaning and power (2003); Singer JW Entitlement: The paradoxes of property (2000)

95-139; Singer JW The edges of the field: Lessons on the obligations of ownership (2000); Singer JW

& Beermann JM “The social origins of property” (1993) 6 The Canadian Journal of Law and

Jurisprudence 217-248; Nedelsky J “Reconceiving rights as relationship” (1993) 1 Review of

Constitutional Studies 1-26.

225 Peñalver EM “Land virtues” (2009) 94 Cornell Law Review 821-888; Alexander GS “The social-

obligation norm in American property law” (2009) 94 Cornell Law Review 745-820. See also Katz L

“The regulative function of property rights” (2011) 8 Econ Journal Watch 236-246 243.

226 Governance property refers to multiple-ownership property that does not have the right to exclude

as its central characteristic or most important element. In this regard see Alexander GS “Governance

property” (2012) 160 University of Pennsylvania Law Review 1853-1887 1856, 1887.


72

contributes to the development of virtues that are necessary for human flourishing.227

Peñalver defines virtues as “acquired, stable dispositions to engage in certain

characteristic modes of behaviour that are conducive to human flourishing”.228 He

identifies virtue ethics as a useful normative view for thinking about property and

property law.229 Peñalver argues that the case of State of New Jersey v Shack230

provides an example in which virtue-based obligations sometimes justifiably limit the

landowner’s power to exclude.231

Singer has focused on the landowner’s obligations that flow from reliance and

social relations.232 His description of property as “the law of democracy”233 implies

that property law shapes social life and both reflects and promotes fundamental

values.234 Property is all about the social order in that it reflects and enables our

conception of what it means to live in a free and democratic society that treats each

person with equal concern and respect.235 In the same vein, Dagan argues that

property in its broader sense embodies social values, reflects them and participates

in their formation.236 Dagan accepts that the right to exclude others from property

can be limited and that this is justified because property can be or is used to serve

227

Alexander GS “Governance property” (2012) 160 University of Pennsylvania Law Review 1853-

1887 1876.

228 Peñalver EM “Land virtues” (2009) 94 Cornell Law Review 821-888 864. See also Alexander GS

“Governance property” (2012) 160 University of Pennsylvania Law Review 1853-1887 1876.

229 Peñalver EM “Land virtues” (2009) 94 Cornell Law Review 821-888.

230 State of New Jersey v Shack 58 NJ 297 (1971) 369.

231 Peñalver EM “Land virtues” (2009) 94 Cornell Law Review 821-888 883.

232 Singer JW “The reliance interest in property” (1988) 40 Stanford Law Review 611-751.

233 Singer JW “Property as the law of democracy” (2014) 63 Duke Law Journal 1287-1335.

234 1291.

235 Singer JW “Property as the law of democracy” (2014) 63 Duke Law Journal 1287-1335 1299. See

also Singer JW “Democratic estates: Property law in a free and democratic society” (2009) 94 Cornell

Law Review 1009-1062 1010, 1047.

236 Dagan H “The public dimension of private property” (2013) 24 King’s Law Journal 260-288 262.


73

commitments to personhood, desert, aggregate welfare, social responsibility and

distributive justice.237

Limiting the right to exclude by including non-owners as lessees, or farm

workers, is also grounded in the social-obligation norm justificatory arguments.

According to Singer, landowners have an obligation to allow non-owners access to

their property if they have previously and voluntarily granted access or opened their

property to others.238 In line with this view, in the case of a lease (landlord-tenant

situation) or farm owner-farmworker relationship, limiting the right to exclude is

justified if the landowner has voluntarily granted access in the form of granting use

and occupancy rights to his property to a tenant or farmworker. Singer also refers to

State of New Jersey v Shack,239 where the court held that a farm owner could not

prevent migrant farmworkers living on his property from receiving visitors in the

privacy of their dwellings or interfere with farmworkers’ opportunity to live with dignity

and to enjoy associations customary among citizens.240 The farm owner cannot

exclude visitors in such cases because when he granted access rights to the

farmworkers to be on his private land for accommodation and working purposes, he

effectively waived part of his right to exclude their visitors from his property.

In State of New Jersey v Shack,241 the court recognised and upheld the

fundamental importance of the right to life and human dignity of the migrant workers

at the expense of the landowner’s right to exclude. The Supreme Court held that:

237

Dagan H “The public dimension of private property” (2013) 24 King’s Law Journal 260-288 274.

238 Singer JW “The reliance interest in property” (1988) 40 Stanford Law Review 611-751 675. See

also Singer JW Introduction to property (2nd

ed 2005) 39.


240 374.

241 58 NJ 297 (1971).


74

“Property rights serve human values. They are recognised to that end and are

limited by it. Title to real property cannot include dominion over the destiny of

persons the owner permits to come upon the premises. Their well-being must

remain the paramount concern of a system of law. Indeed the needs of the

occupants may be so imperative and their strength so weak, that the law will

deny the occupants the power to contract away what is deemed essential to their

health, welfare, or dignity.”242

Access rights in this case rested on the social needs of the farmworkers and their

relative vulnerability, as well as on the landowner’s prior consent. Alexander is of the

view that the limitation of the right to exclude in State of New Jersey v Shack is

justified on the basis of the capabilities of life and affiliation, which depend on the

landowner’s social obligation to contribute to the human flourishing of others.243 I

agree with both Alexander and Singer on this point; looking at the facts of State of

New Jersey v Shack, the landowner’s obligation to permit access does support the

capabilities of life and health and advances other non-property constitutional rights.

A similar conclusion can be drawn with regard to the facts of Nhlabathi and

Others v Fick.244 Although the case involved legislation,245 it shows how the right to

exclude is limited where the landowner had voluntarily granted access to

farmworkers for employment and accommodation purposes. In Nhlabathi and Others

v Fick the right to exclude was limited by a statutory right to establish a grave, which

gives effect to farm occupiers’ non-property constitutional rights, namely secure

tenure as well as religious and cultural rights.246

242

State of New Jersey v Shack 58 NJ 297 (1971) 372.


Review 745-820 809.

244 2003 (7) BCLR 806 (LCC).

245 The Extension of Security of Tenure Act 62 of 1997.

246 See Chapter 3 below for a further discussion of the case.


75

In certain instances the social-obligation norm also applies to businesses that

serve the public. US case law, such as Uston v Resorts International Hotel,

Incorporation,247 extended the right of reasonable access to all places open to the

public. As a result of the reasonable access rule, property owners who open their

property to the public have an obligation not to exclude others. Moreover, their

exclusionary rights are limited in public accommodations on the basis of race, colour,

religion and national origin.248

The social-obligation norm also applies in cases dealing with public access to

beaches.249 The social-obligation norm in cases involving access to and use of

privately-owned beaches entails that the landowner is to ensure reasonable access

to the beach to the general public as a way of supporting the capabilities of life of

others.250 To this extent, limiting the right to exclude for recreational purposes can be

justified by the commitment to further non-owners’ ability to flourish. Alexander

argues that recreation is a necessity that is an important aspect of the capabilities of

life and affiliation. With regard to the capability of life, he suggests that health is the

most vital aspect, in that if all persons are provided with reasonable access to basic

modes of recreation and relaxation, this would contribute to the goal of living capable

lives.251 With regard to the capability of affiliation or sociability, Alexander writes that

247

445 A2d 370 (NJ 1982).

248 Civil Rights Act of 1964; Fair Housing Act of 1968.


Review 745-820 806.


Review 745-819 804-807 argues that owners of private beaches are obligated to grant access to non-

owners for recreational purposes. See also Matthews v Bay Head Improvement Association 471 A2d

355 (NJ 1984); Raleigh Avenue Beach Association v Atlantis Beach Club Inc 879 A2d 125 (NJ 2005).


Review 745-820 806.


76

“affiliation includes the ability to recognise and show concern for other human

beings, to engage in various forms of social interaction; and to be able to imagine the

situation of another”.252 Affiliation encompasses friendship and social participation,

which are important for social relationships.253 I agree with Alexander’s suggestion

that recreation is an important aspect of health, which is a key dimension of the

capability of life.254 If provision is made for everyone, both non-owners and

landowners, to have reasonable access to beaches for recreation and relaxation, this

would in turn contribute to the goal of living lives worth living.

The public trust doctrine, which also supports access rights to beaches, could

be said to encompass the social-obligation norm. The doctrine was adopted in

California and New Jersey state law as the doctrinal basis for requiring public rights

of access to private beaches.255 In Matthews v Bay Head Improvement Association

the court reasoned that the public trust doctrine acknowledges that the ownership,

dominion and sovereignty over land, which extends to the mean high water mark, is

vested in the state in trust for the people.256 Consequently, the landowner’s right to

252


Review 745-820 806, citing Nussbaum M “Human rights and human capabilities” (2007) 20 Harvard

Human Rights Journal 21-24 23.


Review 745-820 806. See also Rose C “The comedy of the commons: Custom, commerce and

inherently public property” (1986) 53 University of Chicago Law Review 711-781 779 who argues that

recreation can be a socializing and educative influence, which is particularly helpful for democratic

values.


Review 745-819 806-807.

255 Matthews v Bay Head Improvement Association 471 A2d 355 (NJ 1984).

256 Matthews v Bay Head Improvement Association 471 A2d 355 (NJ 1984) 369. The court held that

the public trust doctrine establishes an easement over “quasi-public lands” for the public to have

access to the beach.


77

exclude is limited for recreational purposes so as to meet the public needs

(legitimate interests of non-owners) and to further the general welfare.

The same argument, that recreation is an important aspect of human

capabilities, can be used to justify limiting the right to exclude when non-owners use

their statutory right to roam on privately owned land. Anderson states that the British

government’s commitment to improving countryside access is grounded in values

such as providing for transportation by foot, enhancing the enjoyment of nature,

promoting mental and physical health, facilitating a historical and cultural connection

and building a sense of community.257 Although not arguing from a social-obligation

perspective, the values Anderson mentions contribute to the human capabilities of

life, health and affiliation. Therefore, the limitation presented by the Countryside and

Rights of Way Act258 is justified because its provisions place strong emphasis on

promoting these human capabilities. Roaming rights under the CROW Act and the

Land Reform (Scotland) Act259 also evoke a sense of community among non-owners

who share access rights to land.260 Lovett argues that the provisions of the LRSA

incorporate and seek to promote virtues of responsibility, humility as well as mutual

regard, and that they also provide more potential for human flourishing.261

Accordingly, landowners have an obligation to foster the abovementioned

capabilities and this obligation requires landowners to allow non-owners to have

257

Anderson JL “Countryside access and environmental protection: An American view of Britain’s

right to roam” (2007) 9 Environmental Law Review 241-259 255.

258 2000 (UK) (CROW Act).

259 2003 (LRSA).

260 In this regard see Anderson JL “Countryside access and environmental protection: An American

view of Britain’s right to roam” (2007) 9 Environmental Law Review 241-259 256.


Nebraska Law Review 739-818 778, 817.


78

access to their land.262 Court decisions that effectively enforce human capabilities

result in limiting the right to exclude while the needs of others, both owners and non-

owners, are upheld against the landowner’s right to exclude.

According Alexander, property law promotes human capabilities through

shaping human relationships of reciprocity and community.263 The community is

necessary to create and foster such social relationships, which enhance norms such

as dignity, equality, respect, justice and freedom and not just individual interests.264

In view of the community argument, limiting the right to exclude in the South African

constitutional context when it clashes with non-property constitutional rights is

justified because of the need to advance, protect and promote the rights to life,

human dignity and equality. These rights are the most fundamental rights in the

Constitution, so that allowing non-owners to have access to private, public or quasi-

public land ensures the exercise of these rights and other intricately linked rights in

the Bill of Rights.

The arguments advanced by the progressive property theorists provide

valuable justifications or the basis for justificatory arguments for limiting a

landowner’s right to exclude by granting non-owners access rights to his property. Of

interest to this dissertation is that these theorists to a greater or lesser extent show

that the enforcement of property rights, the right to exclude in particular, stops where

262

For writings on property rights and obligations, see Peñalver EM “Land virtues” (2009) 94 Cornell

Law Review 821-888 870; Singer JW “The ownership society and takings of property: Castles,

investments, and just obligations” (2006) 30 Harvard Environmental Law Review 309-338 314, 328-

338.


Review 745-820 760-773.


127-160 139.


79

there is a need for both non-owners and other landowners to have access rights to

be on or to pass over the landowner’s land. In this context, although access rights

are limitations, they are not described as exceptions. This means that sometimes not

the access rights but the exclusion of non-owners must be justified.

2 3 The idea of absolute ownership and exclusivity: A doctrinal analysis

2 3 1 The content of landownership in South African law: General background

It is difficult to describe ownership in a simple definition.265 Any understanding of

ownership is based on historical, philosophical, religious, economic, political and

social considerations.266 In South African law, the definition of ownership most often

referred to emanates from court decisions and academic literature, which highlight

historical developments and various views regarding the notion of ownership. The

current principles of ownership are based on Roman-Dutch law.267

Ownership was never defined in Roman law but the institution of ownership

existed. However, in early Roman law, there was no precise notion of ownership.268

265

Badenhorst PJ, Pienaar JM & Mostert H Silberberg & Schoeman’s The law of property (5th ed

2006) 91.

266 Badenhorst PJ, Pienaar JM & Mostert H Silberberg & Schoeman’s The law of property (5

th ed

2006) 91; Cowen DV New patterns of landownership: The transformation of the concept of ownership

as plena in re potestas (1984) 7-8.

267 In this chapter, I do not provide a full or comprehensive historical overview of the Roman-Dutch

law; instead, I refer to certain sources.

268 Diόsdi G Ownership in ancient and preclassical Roman law (1970) 51. Johnston D Roman law in

context (1999) 53 states that ownership in Roman law was difficult to define and the Romans did not

trouble themselves to define it. Borkowski A & Du Plessis P Textbook on Roman law (3rd

ed 2005)

157 state that there has been speculation about the nature of ownership in Roman law. It seems that

the Romans lacked a precise concept of ownership in early law. There was perhaps no need to have

a precise concept of ownership because early Roman society was structured in such a way that

property disputes would be a rarity. The paterfamilias exercised control over the persons and things in

his household.


80

The concept of dominium emerged later on while the terminology for ownership was

still rather vague in early law.269 The ownership that Roman law recognised was

called dominium in classical law.270 This referred to the relationship of a dominus to a

res. Furthermore, it was a relationship, not a right or a bundle of rights.271 In Roman

law, ownership was not regarded as an absolute or unrestricted right.272 In other

words, dominium was never absolute in Roman law.273 Ownership was limited in

various ways,274 including by public law in the interest of public health and safety.

Secondly, an owner could voluntarily limit his right of ownership by giving actual use

and enjoyment to others, for instance by usufruct.275 Thirdly, the power of an owner

269

Borkowski A & Du Plessis P Textbook on Roman law (3rd

ed 2005) 157; Diόsdi G Ownership in

ancient and preclassical Roman law (1970) 51.

270 Prichard AM Leage’s Roman private law: Founded on the Institutes of Gaius and Justinian (3

rd ed

1961) 158; Robinson JJ Selections from the public and private law of the Romans: With a

commentary to serve as an introduction to the subject (1905) 165.

271 Prichard AM Leage’s Roman private law: Founded on the Institutes of Gaius and Justinian (3

rd ed

1961) 158.

272 See Visser DP “The ‘absoluteness’ of ownership: The South African common law in perspective”

1985 Acta Juridica 39-52; Birks P “The Roman law concept of dominium and the idea of absolute

ownership” 1985 Acta Juridica 1-38; Van der Walt AJ & Kleyn DG “Duplex dominium: The history and

significance of the concept of divided ownership” in Visser DP (ed) Essays on the history of law

(1989) 213-260 217; Van der Walt AJ “The South African law of ownership: A historical and

philosophical perspective” (1992) 25 De Jure 446-457; Scott H “Absolute ownership and legal

pluralism in Roman law: Two arguments” in Mostert H & Bennet T (eds) Pluralism and development:

Studies in access to property in Africa (2011) 23-34 24.

273 Visser DP “The ‘absoluteness’ of ownership: The South African common law in perspective” 1985

Acta Juridica 39-52 39, 48 (with reference to footnote 7); Van der Walt AJ & Kleyn DG “Duplex

dominium: The history and significance of the concept of divided ownership” in Visser DP (ed) Essays

on the history of law (1989) 213-260 217 (with reference to footnote 28).

274 Thomas PhJ Introduction to Roman law (1986) 37.

275 Another example is that the owner could agree to lease his property to another and so divest

himself of the possession (in the sense of physical control) and allow the lessee the use and

enjoyment of the property. See Van Warmelo P An introduction to the principles of Roman civil law

(1976) 78.


81

over his land was fettered by his neighbours’ rights to enjoy their property.276 These

limitations on ownership show that it was by no means absolute.

A similar picture regarding the absoluteness of ownership appears in Roman-

Dutch law. Roman-Dutch law was neither characterised by an absolute notion of

ownership, nor was it the source of the view of absolute ownership as it might be

discernible in South African law, because in most instances ownership was restricted

by both private and public law.277 Roman-Dutch law in this regard developed on the

basis of Bartolus’ definition of ownership as the right to perfectly dispose over a

corporeal object, insofar as is not prohibited by law.278 Bartolus’ definition of

ownership appears to create the idea of ownership as an absolute right, but in fact it

does not.279 The fact that his definition ends with the words “… insofar as is not

prohibited by law” means that ownership is enjoyed within the boundaries of what the

law allows. Arguably, Bartolus’ definition is similar to the modern German definition

of ownership, namely that “ownership is what the law allows”.280 Bartolus’ definition

of ownership shows that ownership is not absolute but inherently limited. Bartolus’

276

Limitations established by law in the interest of neighbours. See Van Warmelo P An introduction to

the principles of Roman civil law (1976) 78.

277 Visser DP “The ‘absoluteness’ of ownership: The South African common law in perspective” 1985

Acta Juridica 39-52 39, 43, 47.


(1995) 58 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 396-420 404 (with reference to

footnote 38); Van der Walt AJ “Bartolus se omskrywing van dominium en die interpretasies daarvan

sedert die vyftiende eeu” (1986) 49 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 305-321 305.

Van der Walt AJ “Ownership and personal freedom: Subjectivism in Bernhard Windscheid’s theory of

ownership” (1993) 56 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 569-589 577-578 states

that Bartolus was the first to formulate the definition of ownership in Roman-law tradition during the

fourteenth century.

279 Van der Walt AJ The law of neighbours (2010) 43-44.

280 Van der Walt AJ Property in the margins (2009) 33 (with reference to footnote 6) states that the

Dutch Civil Code (BW 5:1) and the German Civil Code (BGB § 903) provide that the owner is free to

use the property as he wishes and to the exclusion of everybody, within the limits laid down by law.


82

definition was adopted by Grotius, who views ownership as the power to make full

use of the object for one’s own benefit and according to one’s own will, to the extent

that such use is not prohibited by law.281 Grotius’ definition gives rise to the Roman-

Dutch idea that ownership grants the landowner the most comprehensive collection

of entitlements, including the right to exclude.282 However, Grotius’ definition, just like

Bartolus’ definition of ownership, does not describe ownership as an absolute right.

The definitions of ownership proposed by Bartolus and Grotius have been influential

in Roman-Dutch law and this is reflected in the definition of ownership generally

upheld in South African law.283

The idea that ownership is absolute is a product of nineteenth century

pandectism. Windscheid describes ownership as the power, granted by law and

backed up by judicial remedies, to enforce one’s will against others.284 In this

context, a real right is a right that allows the beneficiary to enforce her will by

determining the actions of everybody else with regard to the object of the right.285

This definition emphasises the exclusive nature of real rights and distinguishes

281

Van der Walt AJ “Marginal notes on powerful(l) legends: Critical perspectives on property theory”



property law” (1995) 2 South African Journal on Human Rights 169-206 178; Van der Walt AJ

Property in the margins (2009) 32.


th ed

2006) 91. See also Johannesburg City Council v Rand Townships Registrar 1910 TS 1314 1319;

Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) 106-107; Gien v Gien 1979 (2) SA 1113 (T)

1120.


(1995) 58 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 396-420 406, citing Windscheid

Lehrbuch des Pandektenrechts 1982. See also Van der Walt AJ “Ownership and personal freedom:

Subjectivism in Bernhard Windscheid’s theory of ownership” (1993) 56 Tydskrif vir die Hedendaagse

Romeins-Hollandse Reg 569-589 572.




83

ownership from limited real rights in a particular way. The difference is that

ownership gives an owner the power to exclude others and to determine the use of

the property, while the beneficiary of a limited real right has the power to exclude

others only in regard to certain uses of the object.286 For example, a lease conveys

the right to exclusive possession on the tenant; that is, the right in the tenant to

exclude all comers from the property, including the landlord.287 Windscheid’s

description of the subjective right presents ownership as largely characterised by the

power to exclude, either absolutely or according to the nature of the right. Arguably,

a sense of individual power and autonomy is thereby incorporated into the notion of

exclusivity, in line with the metaphor “a man’s home is his castle”. In this regard, it

appears that the right to exclude is an essential element of ownership and of all real

rights, although it is relative to each kind of right.

Windscheid’s definition indicates that the source of the notion of absolute

ownership is nineteenth-century pandectism and not Roman-Dutch law.288 It is due

to the pervasive influence of pandectist scholarship that the institution of ownership

is generally described and understood as “absolute” in academic literature, where

286

Van der Walt AJ “Marginal notes on powerful(l) legends: Critical perspectives on property theory”

(1995) 58 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 396-420 406; Van der Walt AJ

“Ownership and personal freedom: Subjectivism in Bernhard Windscheid’s theory of ownership”


287 Cowan D, Fox O’Mahony L & Cobb N Great debates in property law (2012) 88.

288 In this regard see Van der Walt AJ “The South African law of ownership: A historical and

philosophical perspective” (1992) 25 De Jure 446-457 453-455; Van der Walt AJ “The fragmentation

of land rights” (1992) 8 South African Journal on Human Rights 431-450 433; Vandevelde KJ “The

new property of the nineteenth century: The development of the modern concept of property” (1980)

29 Buffalo Law Review 325-368 328; Horwitz MJ “The transformation in the conception of property in

American law, 1780-1860” (1973) 40 University of Chicago Law Review 248-290 248.


84

pandectism had most influence.289 In the pandectist system of rights, ownership is

the most complete real right, which allows the owner to enforce his will with regard to

all aspects of the control and use of the property.290

The South African civil-law291 concept of ownership has been adopted in the

theory of subjective or private-law rights, where it reflects Windscheid’s definition of

rights and specifically of ownership.292 The theory of subjective rights is accepted in

private-law doctrine, especially during the pre-constitutional era, as a good reflection

of the nature of private law rights.293 In this doctrinal context, ownership is perceived

as a stronger and more valuable right than either limited real or personal property

rights because it is the most extensive real right, and it is portrayed as absolutely

enforceable. Furthermore, ownership is stronger and more valuable than limited real

rights because it is the most complete and comprehensive real right from which all

289

Milton JRL “Ownership” in Zimmermann R & Visser DP (eds) Southern cross: Civil law and

common law in South Africa (1996) 657-699 696-697. See also Visser DP “The ‘absoluteness’ of

ownership: The South African common law in perspective” 1985 Acta Juridica 39-52 46-47.

290 Van der Walt AJ “Ownership and personal freedom: Subjectivism in Bernhard Windscheid’s theory

of ownership” (1993) 56 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 569-589 574.

291 According to Van der Walt, the nineteenth-century pandectist concept of ownership greatly

influenced the traditional civil-law perception of ownership as both ascribe absoluteness and

exclusivity to the nature of ownership. See Van der Walt AJ “Ownership and personal freedom:

Subjectivism in Bernhard Windscheid’s theory of ownership” (1993) 56 Tydskrif vir die Hedendaagse

Romeins-Hollandse Reg 569-589 569-570.


property law” (1995) 2 South African Journal on Human Rights 169-206 178; Van der Walt AJ

“Marginal notes on powerful(l) legends: Critical perspectives on property theory” (1995) 58 Tydskrif vir

die Hedendaagse Romeins-Hollandse Reg 396-420 402-410.

293 See in this regard Van der Walt AJ “Tradition on trial: A critical analysis of the civil-law tradition in

South African property law” (1995) 2 South African Journal on Human Rights 169-206 178. See also

Van der Walt AJ “Gedagtes oor die herkoms en ontwikkeling van die Suid-Afrikaanse

eiendomsbegrip” (1988) 21 De Jure 16-35, 17-18; Mostert H The constitutional protection and

regulation of property and its influence on the reform of private law and landownership in South Africa

and Germany: A comparative analysis (2002) 171-176.


85

other limited real rights are derived.294 This more or less pandectist notion of

absoluteness only affected South African academic literature, but it had no visible

effect on case law. Van der Merwe could be regarded as the first academic scholar

to establish the foundation of the modern conception of ownership.295 His definition

of ownership as the most complete and extensive private right that a person can

have with regard to a corporeal thing is generally accepted in South African law.296

Van der Merwe’s definition is also an indication of the acceptance of the notion of

absolute ownership from the nineteenth century pandectists, such as Windscheid,

that forms part of the South African common law tradition, at least in academic

literature.

In case law, the courts refer to the Roman-Dutch law definition, namely that

ownership is the most complete right that allows any use of property insofar as the

law does not prohibit it, which is still based on Bartolus’ definition. In Roman-Dutch

law ownership is neither absolute (unlimited) nor exclusive. The definition used by

the South African courts includes the qualification “what the law allows”. The case

law indicates that ownership is considered absolute only in the sense that it is a

more complete right than the limited real rights. This implies that ownership is not

regarded as absolute in the sense that a landowner can do what he wants, because

294

Van der Walt AJ “Tradition on trial: A critical analysis of the civil-law tradition in South African

property law” (1995) 2 South African Journal on Human Rights 169-206 179.

295 See Van der Merwe CG Sakereg (2

nd ed 1989) 173 regarding his authoritative definition of

ownership. See also Van der Walt AJ “Introduction” in Van der Walt AJ (ed) Land reform and the

future of landownership in South Africa (1991) 1-7 1; Mostert H The constitutional protection and

regulation of property and its influence on the reform of private law and landownership in South Africa

and Germany: A comparative analysis (2002) 176.

296 Van der Merwe CG “Ownership” in Joubert WA & Faris JA (eds) The law of South Africa volume

27 (1st Reissue 2002) 217-355 para 295; Milton JRL “Ownership” in Zimmermann R & Visser DP

(eds) Southern cross: Civil law and common law in South Africa (1996) 657-699 696-697.


86

the exercise of ownership rights depends on what the law allows. Accordingly, a

landowner’s right to exclude is qualified in that he can exercise his right to the extent

that it is not prohibited by law. The case law displays a more or less consistent

adherence to this non-absolute approach.297

In Johannesburg Municipal Council v Rand Townships Registrar298 the court

held that Savigny’s definition of ownership may be accepted as high authority.

Savigny defines dominium (ownership) as the unrestricted and exclusive control that

a person has over a thing.299 The court further explained that the owner, although he

has full control of the immovable property, also has the power to part with so much of

his control as he pleases.300 The owner may, if he chooses, let his property to

another to use the land for a certain period of time against the payment of a certain

rent. However, despite the pandectist language the court’s decision does not in fact

reflect the absolute conception of ownership that would correspond with Savigny’s

definition. The court referred to Roman-Dutch law, inter alia, stating that a lessee

could not be ejected by a purchaser on the basis of the huur gaat voor koop rule that

protects the lessee against eviction before the expiry of the lease.301 The huur gaat

voor koop rule does not reflect the notion of absolute ownership that would resemble

Savigny’s definition. This decision is an exception to the general observation

regarding case law in the sense that courts very seldom refer to Savigny (who also

297

Pienaar GJ Sectional titles and other fragmented property schemes (2010) 7 argues that the

pandectist view of ownership as an absolute, individualistic and unrestricted right was erroneously

accepted in South African case law as the legacy of Roman and Roman-Dutch law.

298 Johannesburg Municipal Council v Rand Townships Registrar 1910 TS 1314 1319.

299 Johannesburg Municipal Council v Rand Townships Registrar 1910 TS 1314 1319. See also Lewis

C “The modern concept of ownership of land” 1985 Acta Juridica 241-266 241; Pienaar GJ Sectional

titles and other fragmented property schemes (2010) 7.




87

was not a pandectist), although in this respect his definition looks similar to the

pandectists’ notion of ownership. The courts usually refer to the Roman-Dutch law

notion of ownership.

Savigny’s view of ownership contradicts Bartolus’ notion of ownership, and it is

also impractical in modern-day conditions. Pienaar explains that ownership of

immovable property is generally limited in four ways, namely by the limited real rights

of others to the property; by the personal rights of others against the owner of the

property regarding the use, control, alienation, vindication and encumbering of the

property; by legislation and public-law limitations in respect of regulatory measures

that are of general interest to the state and the general public; and by limitations on

the exercise of entitlements by owners and occupiers in accordance with the social

function of the law in the interest of the community.302 This suggests that Savigny’s

definition of ownership cannot be accepted as a good reflection of South African law.

In Chetty v Naidoo303 the court, instead of giving a full definition of ownership,

focused on just one of the entitlements of ownership, namely the right of exclusive

possession, which means that the owner has a right to vindicate his property from

anyone who does not have a right of possession. This decision might appear as if it

contradicts the general observation about case law because it focuses on exclusive

possession. The fact is that Chetty v Naidoo deals with the rei vindicatio, and it is

therefore natural to consider that one entitlement as the primary focus. The decision

does not suggest that the right to exclude or to vindicate is absolute.

302

Pienaar GJ Sectional titles and other fragmented property schemes (2010) 28.

303 Chetty v Naidoo 1974 (3) SA 13 (A) 20.


88

In Gien v Gien304 the court held that ownership is the most complete real right

that a person may have in respect of a thing, within the confines of the law.305 This

definition indicates that the scope and content of ownership are qualified or restricted

by what the law allows, in line with Bartolus’ notion of ownership.

Ownership is also defined in case law as the sum total of all real rights that a

person can possibly have to and over corporeal property.306 However, the most

widely accepted definition in South African case law is that ownership is the real right

that potentially confers the most complete or comprehensive control over property,

subject to what the law allows.307 Despite different views on the definition of

ownership, it appears that the definition adopted in Gien v Gien308 remains the most

influential in South African common law. This definition says nothing about

absoluteness or even exclusivity; it merely highlights the difference between

ownership and possession or the limited real rights.

The views of the courts, as expressed in case law,309 regarding the definition of

ownership emphasise the owner’s complete or comprehensive control over property

insofar as the law does not prohibit. As a point of departure, ownership can be

304

Gien v Gien 1979 (2) SA 1113 (T) 1120.

305 1120.

306 Maasdorp AFS Maasdorp’s Institutes of South African law volume ll: The law of property (10

th ed

1976 edited and revised by Hall CG) 27.


th ed

2006) 91, citing Bartolus on D 41.2.17 n1 and Grotius 2.22.1. See also Van der Walt AJ “The

fragmentation of land rights” (1992) 8 South African Journal on Human Rights 431-450 434; Scott S

“Recent developments in case law regarding neighbour law and its influence on the concept of

ownership” (2005) 16 Stellenbosch Law Review 351-377 352.

308 Gien v Gien 1979 (2) SA 1113 (T) 1120.

309 Johannesburg Municipal Council v Rand Townships Registrar 1910 TS 1314 1319; Chetty v

Naidoo 1974 (3) SA 13 (A) 20; Gien v Gien 1979 (2) SA 1113 (T) 1120.


89

regarded as absolute only to the extent that it is a complete real right, subject to

limitations.

2 3 2 The notion of absolute ownership

Absoluteness is a characteristic310 mainly ascribed to landownership in South African

law, probably under the influence of nineteenth century pandectism.311 This section

considers the different meanings or aspects of absoluteness and how each aspect

relates to the exclusivity of ownership.

Firstly, ownership is said to be absolute in the sense that it is the most

complete real right, which distinguishes it from limited real rights. As appeared from

section 2 3 1 above, this is a typically Roman-Dutch view of ownership. Referring to

ownership as a complete real right denotes its fullness in the sense that only

ownership includes all the entitlements of ownership, whereas a holder of a limited

real right or personal right only has a limited entitlement to use someone else’s

property temporarily.312 This meaning of absoluteness is described by Cowen as

310

A characteristic is a doctrinal notion, which is different from an entitlement. An entitlement indicates

what an owner can or cannot do with his property.

311 Milton JRL “Ownership” in Zimmermann R & Visser DP (eds) Southern cross: Civil law and

common law in South Africa (1996) 657-699 694; Van der Merwe CG “Ownership” in Joubert WA &

Faris JA (eds) The law of South Africa volume 27 (1st Reissue 2002) 217-355 para 297 (with

reference to footnote 7); Pienaar GJ Sectional titles and other fragmented property schemes (2010) 3-

4; Scott H “Absolute ownership and legal pluralism in Roman law: Two arguments” in Mostert H &

Bennet T (eds) Pluralism and development: Studies in access to property in Africa (2011) 23-34 23-

24.

312 Van der Walt AJ Property in the margins (2009) 32; Badenhorst PJ, Pienaar JM & Mostert H

Silberberg & Schoeman’s The law of property (5th ed 2006) 92; Gien v Gien 1979 (2) SA 1113 (T)

1120.


90

plena in re potestas.313 In principle, the notion of absoluteness in this sense refers to

completeness in the sense that the owner holds all entitlements that have not been

suspended or transferred to someone else. There is nothing in this definition that

contradicts or undermines the fact that the law may restrict the exercise of ownership

in the interests of neighbouring owners and the general public.314

Furthermore, the notion of ownership as the most complete right indicates that

the owner has all entitlements unless he limits it himself by transferring certain

entitlements to a non-owner. The owner can transfer some of his entitlements freely

without his ownership of property being terminated. For example, upon transfer of a

limited use right a servient owner loses some aspect of the right to exclude but this

does not mean that the dominant owner acquires the right to exclude because both

owners can use the servitude area (for example the road).315 At this point, neither the

servient owner nor the dominant owner has an absolute right to exclude. This is

already an indication that the right to exclude is an entitlement and not a

characteristic of ownership, in that it shows what the servient or dominant owner can

do with the property. This aspect of absoluteness does not necessarily imply a

strong version of exclusivity, since the existence of the servitude limits the powers of

the servient owner to exercise his right to exclude. Ownership is not absolute

313

Cowen D New patterns of landownership: The transformation of the concept of ownership as plena

in re potestas (1984) 8-9. See also Van der Walt AJ “Introduction” in Van der Walt AJ (ed) Land

reform and the future of landownership in South Africa (1991) 1-7 2.

314 Cowen D New patterns of landownership: The transformation of the concept of ownership as plena

in re potestas (1984) 67.

315 In Johl and Another v Nobre and Others (23841/2010) [2012] ZAWCHC 20 (20 March 2012) para

22 the court ordered that the first and second applicant (servient tenement owners) are entitled to be

provided with a remote device to the security gate erected at the entrance of the servitude area by the

owner of the dominant tenement (servitude holder). This is an indication that a servitude holder does

not have exclusive use of or access to the burdened servient land.


91

because the owner has the most extensive collection of entitlements. Rather,

ownership is absolute only to the extent that it is the most complete real right, to

distinguish it from limited real rights. Accordingly, exclusion is not in any way

absolute because, as an entitlement of ownership, it does not distinguish ownership

from limited real rights since the right to exclude others could either be suspended or

transferred to the holders of limited real rights or personal rights, while other

entitlements may well be more important than exclusion in a given case.

Secondly, ownership is sometimes said to be absolute in the sense that the

property is held by an individual owner to the exclusion of others.316 This is also

referred to as the characteristic of individuality. The individuality of ownership means

that there is only one kind of ownership and that ownership is not fragmented.317

This suggests that, apart from co-ownership (undivided ownership that is jointly held

by co-owners), only one person can own property and the owner’s right is

enforceable against the whole world.318 Van der Walt claims that this individualistic

character of ownership underlies the strong protection afforded to an owner, in terms

of which the owner can vindicate his property from anyone who is in possession of it

316

Van der Vyver JD “Ownership in constitutional and international law” 1985 Acta Juridica 119-146

134 identifies exclusivity in the sense of the power of disposition that allows an owner to exclude the

competing title of any other person to the same object. See also Van der Merwe CG Sakereg (2nd

ed

1989) 175; Van der Walt AJ “The South African law of ownership: A historical and philosophical

perspective” (1992) 25 De Jure 446-457 447.

317 Van der Walt AJ & Kleyn DG “Duplex dominium: The history and significance of the concept of

divided ownership” in Visser DP (ed) Essays on the history of law (1989) 213-260 214; Pienaar GJ

Sectional titles and other fragmented property schemes (2010) 4.

318 Van der Walt AJ & Kleyn DG “Duplex dominium: The history and significance of the concept of

divided ownership” in Visser DP (ed) Essays on the history of law (1989) 213-260 214; Pienaar GJ

Sectional titles and other fragmented property schemes (2010) 4.


92

without being able to prove a valid legal cause for his possession.319 The individuality

of ownership sets out the position of the owner regarding his property against other

legal subjects and also indicates the exclusive nature of the right that an owner

holds. This aspect presents a different meaning of absoluteness from the previous

one and it places more emphasis on exclusivity, but it does not necessarily imply a

strong version of exclusivity. This aspect simply shows that only one person can hold

the right to exclude all others from the use and exploitation of property at a given

time, but it does not describe the extent to which the right to exclude can be

exercised by the landowner. It therefore does not imply that exclusivity is absolute or

even strong.

Thirdly, ownership is said to be absolute in that it is perceived as an abstract

right to indicate that ownership is always more than the sum total of its constituent

entitlements and that it is not exhausted or eroded by the temporary granting of

limited real rights or by the temporary imposition of restrictions.320 This means that

ownership is a totality of rights, contrary to the bundle of rights approach. By

implication, when limitations are imposed on the owner, they are only temporary.

Ownership resumes its fundamental completeness as soon as the limitations fall

319

Van der Walt AJ “The South African law of ownership: A historical and philosophical perspective”

(1992) 25 De Jure 446-457 447.


(1992) 25 De Jure 446-457 447; Van der Walt AJ “Ownership and personal freedom: Subjectivism in

Bernhard Windscheid’s theory of ownership” (1993) 56 Tydskrif vir die Hedendaagse Romeins-

Hollandse Reg 569-589 582. See also Mostert H The constitutional protection and regulation of

property and its influence on the reform of private law and landownership in South Africa and

Germany: A comparative analysis (2002) 179-180.


93

away.321 In the same sense, ownership is also perceived as an indivisible322 and

therefore a non-fragmented right.

This perception of absoluteness of ownership as an abstract right relates to the

“elasticity of ownership”.323 Some authors also refer to the elasticity of ownership as

its residuary character.324 Importantly, the elasticity of ownership embraces the idea

that when rights in property that are held by persons other than the owner are

terminated, for instance when a servitude terminates, those rights automatically

revert back to the owner.325 Cowen uses an analogy or image of a “rubber ball” to

explain the idea of the elasticity of ownership:

“Ownership is like a rubber ball in that no matter how much it might be

compressed, it automatically expands again and recovers or attracts back the

various subtractions, or iura in re aliena, once these come to an end.”326

321

Van der Walt AJ “Ownership and personal freedom: Subjectivism in Bernhard Windscheid’s theory

of ownership” (1993) 56 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 569-589 575. See

also Dannenbring R Roman private law 1968 92 (translation of Kaser M Römisches Privatrecht 6th ed

1960).

322 Van der Walt AJ “The future of common law landownership” in Van der Walt AJ (ed) Land reform

and the future of landownership in South Africa (1991) 21-35 31.

323 Cowen DV New patterns of landownership: The transformation of the concept of ownership as

plena in re potestas (1984) 76; Lewis C “The modern concept of ownership of land” 1985 Acta

Juridica 241-266 257.


th ed

2006) 93; Mostert H The constitutional protection and regulation of property and its influence on the

reform of private law and landownership in South Africa and Germany: A comparative analysis (2002)

180.

325 Lewis C “The modern concept of ownership of land” 1985 Acta Juridica 241-266 257. See also

Van der Walt AJ “Property rights and hierarchies of power: An evaluation of land reform policy in

South Africa” (1999) 64 Koers 259-294 268; Van der Merwe CG “Ownership” in Joubert WA & Faris

JA (eds) The law of South Africa volume 27 (1st Reissue 2002) 217-355 para 296.

326 Cowen DV New patterns of landownership: The transformation of the concept of ownership as

plena in re potestas (1984) 76.


94

In other words, regardless of limitations imposed on property, the owner will retain

the residual right. In South African law, some authors claim that the elasticity of

ownership renders it absolute and thus distinguishes it from all other rights that the

owner may have in property.327 Contrary to this claim, Honoré depicts elasticity as a

mere incident of ownership, which forms part of his list of standard incidents of

ownership.328 The notions of abstractness, elasticity or residual and indivisible

character of ownership appear to have the same effect, that is, as soon as a

limitation falls away ownership resumes its natural completeness. Van der Walt329

observes that Van der Merwe330 ascribes the characteristics of elasticity and

abstractness to the definition of ownership in that, even if it is limited, it remains

absolute in principle and renders all limitations exceptional.

The abstractness of ownership is an aspect of absoluteness that has some

implications for exclusivity. If ownership (property rights) is seen as something that is

necessarily more than the sum total of all its constituent entitlements, ownership is

not looked at in view of the context in which it appears or is exercised. Ownership, as

a right, is determined abstractly and statically. Since context does not play a role, the

exclusivity of ownership, like all the entitlements, is exercised and protected

regardless of context, with the result that the right to exclude assumes the abstract

and context-free character sometimes associated with its supposed absoluteness.

327

Cowen DV New patterns of landownership: The transformation of the concept of ownership as

plena in re potestas (1984) 75, 77; Lewis C “The modern concept of ownership of land” 1985 Acta

Juridica 241-266 257.

328 Honoré T Making law bind: Essays legal and philosophical (1987) 175-179.

329 Van der Walt AJ “Introduction” in Van der Walt AJ (ed) Land reform and the future of

landownership in South Africa (1991) 1-7 1-2.

330 Van der Merwe CG Sakereg (2

nd ed 1989) 175-176.


95

Fourthly, ownership is said to be absolute in the sense that it is unlimited in

principle, allowing the owner to do with his property as he likes, even though it might

be subject to temporary restrictions.331 Van der Walt argues that this perception of

ownership, which has dominated South African legal doctrine, is often equated with

private individual ownership of property in a free market environment.332 Private

landownership in a free market endows the owner with entitlements that are

unrestricted in principle, but may allow for the existence of restrictions.333 This

331

Van der Walt AJ “The future of common law landownership” in Van der Walt AJ (ed) Land reform

and the future of landownership in South Africa (1991) 21-35 31; Van der Walt AJ “Roman-Dutch and

environmental land-use control” (1992) South African Public Law 1-11 4; Van der Walt AJ “The South

African law of ownership: A historical and philosophical perspective” (1992) 25 De Jure 446-457 447;

Van der Walt AJ “Tradition on trial: A critical analysis of the civil-law tradition in South African property

law” (1995) 2 South African Journal on Human Rights 169-206 178-179; Van der Walt AJ “Exclusivity

of ownership, security of tenure, and eviction orders: A model to evaluate South African land reform

legislation” 2002 Tydskrif vir die Suid-Afrikaanse Reg 254-289. See also Visser DP “The

‘absoluteness’ of ownership: The South African common law in perspective” 1985 Acta Juridica 39-52

39 (with reference to footnote 7); Pienaar GJ Sectional titles and other fragmented property schemes

(2010) 3; Badenhorst PJ, Pienaar JM & Mostert H Silberberg & Schoeman’s The law of property (5th

ed 2006) 91-92; Scott S “Recent developments in case law regarding neighbour law and its influence

on the concept of ownership” (2005) 16 Stellenbosch Law Review 351-377 376; Van der Merwe D

“Property in mixed legal systems: South Africa” in Van Maanen GE & Van der Walt AJ (eds) Property

law on the threshold of the 21st century (1996) 355-388 364-365.


(1992) 25 De Jure 446-457 446.

333 This is generally accepted as a correct perception of ownership because it has its roots in Roman

and Roman-Dutch Law, which forms the backbone of South African law. See Visser DP “The

‘absoluteness’ of ownership: The South African common law in perspective” 1985 Acta Juridica 39-

52; Birks P “The Roman law concept of dominium and the idea of absolute ownership” 1985 Acta

Juridica 1-38; Van der Walt AJ & Kleyn DG “Duplex dominium: The history and significance of the

concept of divided ownership” in Visser DP (ed) Essays on the history of law (1989) 213-260 213-214;

Pienaar GJ Sectional titles and other fragmented property schemes (2010) 4-5.


96

indicates that an owner is free to do what he pleases with his property, unless his

right is restricted by legislation or by consent.334

It is not contentious to say that ownership confers on a landowner the right to

do with his property as he pleases, within the confines of the law. Limitations (and in

this case, access rights of others imposed or protected by law) are seen as

temporary restrictions on a right that is in principle exclusive.335 As a point of

departure, the presumption is always in favour of exclusion and one has to prove

that it is limited. Underkuffler and Singer refer to this aspect as the “presumptive

power of ownership”.336 However, this statement can have two very different

meanings.

The starting point of the South African law of ownership is that ownership is the

most complete right, which is presumed to be free from limitations imposed by law or

by the owner’s consent. The presumptive power requires limitations on ownership to

be proven, but as soon as one proves the existence of a limitation on ownership, the

right exists and is protected only within the confines of that limitation.

By contrast, the strong versions of exclusion theory hold that property or

ownership can be limited only in exceptional cases, which means that every

limitation must not only be proved but justified on normative grounds. In this view,

ownership should be allowed to operate freely and with the minimum of state

334


(1992) 25 De Jure 446-457 446-447; Van der Walt AJ Property in the margins (2009) 33.

335 Pienaar GJ Sectional titles and other fragmented property schemes (2010) 3-4; Van der Walt AJ

Constitutional property law (3rd

ed 2011) 170-171. See also Singer JW Entitlement: The paradoxes of

property (2000) 3.

336 Underkuffler LS The idea of property: Its meaning and power (2003) 65-70; Singer JW

Entitlements: The paradoxes of property (2000) 3. See also Van der Walt AJ Property in the margins

(2009) 39, 59.


97

interference.337 Limitations should be imposed only when they are strictly justified,

and only on a temporary basis, which leaves ownership unrestricted in principle. This

aspect of absoluteness of ownership implies exclusivity in that the landowner has

absolute discretion to exclude anyone from his property, unless a specific limitation

on that right was either granted by the owner or is justified by overriding normative

considerations. In the absence of such justification, limitations imposed by the law

can in principle be attacked on the basis of invalidity. This is perhaps the one

understanding of absoluteness that really implies exclusivity, and where the

hierarchical supremacy of ownership as an absolute right grants the landowner an

absolute right to exclude anybody who cannot prove a valid and enforceable access

or occupation right.338

However, this is not the understanding of absoluteness that appears from

South African law. The common law rei vindicatio is the principal remedy by which

ownership is protected.339 The rei vindicatio entitles a landowner to recover property

from any person who has possession of it. To succeed, the owner is required to

prove that he is the owner of the property; that the property is in the possession of

the defendant; and that the property is still in existence and clearly identifiable.340 If a

337


(1992) 25 De Jure 446-457 447; Van der Walt AJ “Ownership and personal freedom: Subjectivism in

Bernhard Windscheid’s theory of ownership” (1993) 56 Tydskrif vir die Hedendaagse Romeins-

Hollandse Reg 569-589. See also Van der Walt AJ Constitutional property law (3rd

ed 2011) 169-170.

338 Van der Walt AJ Property in the margins (2009) 34.

339 Van der Walt AJ “Ownership and eviction: Constitutional rights in private law” (2005) 9 Edinburg

Law Review 32-64 42.

340 Chetty v Naidoo 1974 (3) SA 13 (A); Badenhorst PJ, Pienaar JM & Mostert H Silberberg &

Schoeman’s The law of property (5th ed 2006) 243-244; Liebenberg S Socio-economic rights:

Adjudication under a transformative constitution (2010) 343; Van der Walt AJ “Housing rights in the

intersection between expropriation and eviction law” in Fox O’Mahony L & Sweeney JA (eds) The

idea of home in law: Displacement and dispossession (2011) 55-100 55 (with reference to footnote 3).


98

landowner can fulfil these requirements he would normally be entitled to an eviction

order. The moment the landowner fulfils the requirements, he acquires the right to

recover his property. The only common law defence available to the defendant is to

allege and prove a valid right of occupation, for example the existence of some right

to possess arising from a lease agreement or from law.341 An unlawful occupier, who

has no valid right of occupation, cannot prove such a defence and the landowner’s

property rights takes precedence. The remedy is also used in holding over cases,

where the legal basis for the occupation had lapsed or where a lease agreement had

been cancelled and an occupier refuses to leave,342 in other words where occupation

was once lawful but became unlawful.

In this context, the common law rei vindicatio plays a major role in

characterising the power of ownership.343 The case of Chetty v Naidoo344 is a classic

example. The court held that the owner was entitled to exclusive possession of

property,345 an entitlement which arises from ownership or is inherent in ownership.

In the common-law tradition, an eviction application by a private landowner using the

341

Van der Merwe CG “Ownership” in Joubert WA & Faris JA (eds) The law of South Africa volume

27 (1st Reissue 2002) 217-355 para 382; Badenhorst PJ, Pienaar JM & Mostert H Silberberg &

Schoeman’s The law of property (5th ed 2006) 245; Liebenberg S Socio-economic rights: Adjudication

under a transformative constitution (2010) 343.

342 For an example, see Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA) concerning two

cases of holding over. In Ndlovu v Ngcobo, an eviction application arose after the lease had been

terminated and the tenant refused to vacate the property, and in Bekker v Jika an eviction was sought

on the basis that the respondents had refused to vacate land after a sale in execution. See also Van

der Walt AJ “Ownership and eviction: Constitutional rights in private law” (2005) 9 Edinburg Law

Review 32-64 40-45; Badenhorst PJ, Pienaar JM & Mostert H Silberberg & Schoeman’s The law of

property (5th ed 2006) 248 (with reference to footnote 67), 249.

343 Liebenberg S Socio-economic rights: Adjudication under a transformative constitution (2010) 343

argues that the power of property rights in the case of the pre-constitutional common law is reflected

in the rei vindicatio remedy.

344 Chetty v Naidoo 1974 (3) SA 13 (A).

345 Chetty v Naidoo 1974 (3) SA 13 (A) 20.


99

rei vindicatio tends to focus on the landowner’s right to exclusive possession. The

remedy shows the centrality, strength and essentiality of the right to exclude. The

landowner is in a position to exercise his right to exclude non-owners from

possessing a part or all of his property. Ownership in this light can be regarded as

absolute and exclusive.346

The common law rei vindicatio might appear to reflect the strong-absolute view

of ownership and exclusion in that in an eviction case, the owner must simply prove

that he is the owner of property held by the defendant. In fact, however, the rei

vindicatio only forms the starting point of a process guided by the power of

presumption. The protection afforded by the rei vindicatio is based on the

assumption that the owner is entitled to exclusive possession of his property in the

absence of a valid defence.347 In the event that the defendant proves a valid right of

occupation that is enforceable against the owner, the landowner is not entitled to

possession. More specifically, the landowner is sometimes prevented from evicting

or excluding the defendant from his land on the basis of a valid defence deriving

from either the landowner’s consent or legislation, mere proof of which will establish

a conclusive block against recovery of possession. In this sense, the requirements

for the rei vindicatio do not include a normative justification for the existence of the

limitation; the mere existence of the valid defence prevents the landowner from

exercising his exclusionary powers. Accordingly, limitations on the right to exclude

are possible and normal within the evidentiary structure of the presumption that

ownership is unlimited.

346

Kroeze IJ Between conceptualism and constitutionalism: Private-law and constitutional

perspectives on property (1997) unpublished LLD dissertation University of South Africa 128, 132.



100

2 4 Conclusion

Ownership is often regarded as absolute in several senses, the most significant

being that ownership is unrestricted in principle. Consequently, the right to exclude

would also be absolute. The aim of this chapter was to review the theoretical and

doctrinal justifications for such an absolutist view of the right to exclude. The chapter

highlights a number of theoretical considerations that point away from such a strong

view of the landowner’s right to exclude. Firstly, the case for building an exclusivist

theory on the basis of moral property theory seems to be weak. Secondly, even

though modern exclusion theorists view ownership and exclusion as absolute in the

strong sense, they accept the necessity for limitations. The general approach among

the exclusion theorists seems to be to start with upholding the right to exclude. If

limitations are inevitable, they are regarded as exceptional, which means they have

to be both proven and justified, and sometimes compensation has to be paid for

them as well. Thirdly, the exclusive use and progressive property theorists view

limitations on exclusion not as exceptions but as inherent elements of the property

system. Ownership and the right to exclude are in fact limited by law, just as they are

sometimes limited by the landowner himself when he grants rights to non-owners.

South African case law suggests that ownership and the right to exclude are

exercised and protected insofar as the law permits. The starting point is Bartolus’

definition of ownership as the most complete right to dispose over a thing, insofar as

the law does not prohibit. This means that limitations exist as a matter of course. The

law imposes limitations on ownership, including the right to exclude, and in that case

the owner’s right extend only as far as the law permits. This was also the general

tenor of Roman-Dutch law and it is the position adopted in case law. Insofar as

ownership is described as absolute, it means that ownership is the most


101

comprehensive real right or that it is presumed to be free of limitations, not that it is

normatively unlimited. The normative decision to impose a limitation on ownership is

therefore one to be considered by the owner himself when granting rights to others,

or by the legislature when adopting regulatory laws, but it is not a ground on which

the existence of limitations could be attacked in court.

The focus of the limitation and justification debate should therefore move to

legislation and common law that regulates the exercise of ownership. Justification

does not require normative grounds for every limitation, because ownership is not a

pre-social, pre-legal or pre-constitutional right. There are various factors that justify

limiting ownership and the landowner’s right to exclude others, including social,

economic and political factors. These factors present normative grounds for the

limitations that are imposed on the right to exclude. Cowen argues that ownership

carries a social responsibility or social obligation and should comply with the social

needs of the day.348 Lewis takes Cowen’s argument further, indicating that the South

African law of land ownership has already been transformed by social, economic,

and political forces and that it can no longer be consistent with the traditional

Grotian-pandectist concept of ownership as an absolute right.349 The progressive

property theorists consider the social context that indicates why property should in

348

Cowen DV New patterns of landownership: The transformation of the concept of ownership as

plena in re potestas (1984) 70-73.

349 Lewis C “The modern concept of ownership of land” 1985 Acta Juridica 241-266 260. See also

Cowen DV New patterns of landownership: The transformation of the concept of ownership as plena

in re potestas (1984); Van der Walt AJ “The fragmentation of land rights” (1992) 8 South African

Journal on Human Rights 431-450. Van der Walt AJ “Exclusivity of ownership, security of tenure and

eviction orders: A critical evaluation of recent case law” (2002) 18 South African Journal on Human

Rights 372-420; Van der Walt AJ “Exclusivity of ownership, security of tenure, and eviction orders: A

model to evaluate South African land reform legislation” 2002 Tydskrif vir die Suid-Afrikaanse Reg

254-289 provides an analysis of the nature of ownership in South African law with regard to case law

and legislation that have led to the erosion of the traditional concept of ownership.


102

fact be subject to limitations. These theorists accept that property rights are subject

to regulatory state interference and limitation to promote the fulfilment of certain

important human values.350 From a theoretical point of view, the limitation of the right

to exclude is justified by the need to fulfil both owners’ and non-owners’

constitutional and socio-economic obligations and rights. The role of the Constitution

in explicating normative grounds for limitations on ownership is therefore of central

significance.

The notion of property as an absolute right to exclude is problematic because it

does not take into account the social context. Progressive property theory and the

doctrinal analysis of ownership in South African law indicate that the right to exclude

is in fact subject to a wide range of limitations, which makes it difficult to conceive the

right as absolute and the limitations as exceptional. The limitations are inherent in

the property system. In reality, the right to exclude as an entitlement of ownership is

limited by law. It is therefore necessary to consider the circumstances and the ways

in which the landowner’s right to exclude is limited.

350

See section 2 2 4 above.


103

Chapter three:

Access rights that limit the right to exclude

3 1 Introduction

The right to exclude is limited extensively, both at common law and by statutory

control measures or constitutional provisions, allowing non-owners to have access to

land for various purposes. At common law, at least in principle, the right to exclude is

strongly protected to the extent that any limitation on the right to exclude has to be

proved. However, the idea that these limitations are exceptional is just a general

perception, not really an accurate description of the position in law.1 Both at common

law and in the constitutional setting, limitations on the right to exclude are inherent to

the property system.2 According to Van der Walt, property is a limited, circumscribed

right that is recognised and protected within a property system that is inherently and

inevitably a regulated system.3 Many limitations on the right to exclude are inherent

to the property system, they are granted by law, against the landowner’s will and

without his consent.

Property as an institution is circumscribed by limitations aimed at easing the

tension between the right to exclude and the rules, rights and values favouring non-

owners’ access rights to land. Several courts that had to assess the presumptive 1 Wilkinson JH “The dual lives of rights: The rhetoric and practice of rights in America” (2010) 98

California Law Review 277-326 290 notes that Blackstone knew that claims of absolutism were

overstatements. Furthermore, he notes that Blackstone spent five hundred pages describing various

situations in which property rights properly yield to community interests. Other scholars also

acknowledge that the owner’s right to exclude is not absolute. See Alexander GS & Peñalver EM An

introduction to property theory (2012) 143.

2 See the discussion in Chapter 2 above.

3 Van der Walt AJ Property and constitution (2012) 29.


104

power to exclude have realised the importance of enforcing access rights to land for

the benefit of the public.4 According to Gray and Gray, the (English) common law

tradition has generally accepted that the estate owner enjoys an absolute right to

determine precisely who may enter or remain on his land.5 However, there is support

for the view that arbitrary powers of exclusion are qualified by the fundamental

principles of human freedom and dignity.6 Many common law jurisdictions have seen

a move away from an arbitrary exclusion rule towards a reasonable access rule in

terms of which non-owners can be excluded only on grounds that are objectively

reasonable.7 For instance, in Uston v Resorts International Hotel Incorporation,8 the

Supreme Court of New Jersey confirmed the doctrine of reasonable access and

ruled that an owner of quasi-public premises is no longer entitled to the common law

right to unreasonably exclude others.

An increasing recognition of access rights to land (private, public or quasi-

public) has become a notable development in property law. Courts are moving away

4 For example see the decisions of State of New Jersey v Shack 58 NJ 297 (1971) 305; Marsh v

Alabama 326 US 501 (1946) 506; Committee for the Commonwealth of Canada v Canada [1991] 1

SCR 139 (SC); Victoria and Alfred Waterfront (Pty) Ltd and Another v Police Commissioner, Western

Cape and Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA 444 (C).

5 Gray K & Gray SF “The idea of property in land” in Bright S & Dewar J (eds) Land law: Themes and

perspectives (1998) 15-51 37. See also Semayne’s Case 77 ER 194 (1604), which established the

principle that a homeowner has a right to defend his premises against intrusion. This case introduced

the metaphor “every man’s house is his castle”.


perspectives (1998) 15-51 38. See also Gray K “Equitable property” (1994) 47 Current Legal

Problems 157-214 172-181.


perspectives (1998) 15-51 38; Gray K & Gray SF “Civil rights, civil wrongs and quasi-public space”

(1999) 4 European Human Rights Law Review 46-102 55-57. The doctrine of reasonable access is

applied in countries such as United States of America, United Kingdom, and Scotland.

8 445 A2d 370 (NJ 1982) 373. See also Gray K “Property in thin air” (1991) 50 Cambridge Law

Journal 252-307 291.


105

from the traditional default position by allowing access rights against the landowner’s

right to exclude.9 However, an expansion of access rights over privately owned land

could give rise to major challenges, particularly given that a private landowner is

presumed to have the right to exclude others from his land.10

Lovett states that it is practically possible for a modern, democratic nation

committed to the rule of law, the protection of private property and an open market, if

it wants, to create a property regime that largely replaces the ex ante presumption in

favour of the right to exclude with an equally robust, but rebuttable, ex ante

presumption in favour of access.11 American property law places a high value on the

right to exclude as a core principle of private ownership, whereas Scots law has a

completely different approach.12 The LRSA shows that the landowner’s right to

exclude is in fact subject to limitations in the form of a statutory right to roam.

Lovett’s recognition of the possibility of providing stronger and general access rights

to non-owners provides a useful framework for the arguments developed in this

chapter.

Taking into consideration growing awareness of access rights to property, a

pertinent question is to establish where access rights originate. What is the range of

9 For example see Committee for the Commonwealth of Canada v Canada [1991] 1 SCR 139 (SC);

New Jersey Coalition Against the War in the Middle East v J.M.B Realty Corp 650 A.2d 761 (NJ

1994); Victoria and Alfred Waterfront (Pty) Ltd and Another v Police Commissioner, Western Cape

and Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA 444 (C).

10 A greater part of this study focuses mainly on access rights to be on or to move over privately

owned land. However, it is also important to consider, albeit not extensively, access to public or quasi-

public land.


Nebraska Law Review 739-818.

12 The approach stems from the enactment of general public recreational access rights encompassed

in the Land Reform (Scotland) Act 2003 (LRSA). See Lovett JA “Progressive property in action: The

Land Reform (Scotland) Act 2003” (2011) 89 Nebraska Law Review 739-818 740-741.


106

limitations that are imposed on the right to exclude in form of access rights? How

and to what extent do access rights limit the landowner’s right to exclude? In this

chapter, I describe different access rights that limit the right to exclude, taking into

account where, when and for what activities these access rights can be exercised.

The purpose of the chapter is to identify sources of law that grant non-owners

access rights to privately owned land (and also to public or quasi-public land), to

identify the content and purpose of those access rights, and to ascertain the impact

that those access rights may have on the landowner’s right to exclude.

Property is not only concerned with the right to exclude but also with other

rights to have access to property belonging to another person - the right to be

included.13 Access to property can take place either with or without the landowner’s

permission or consent.14 When non-owners gain access to property with the consent

of the owner, the landowner is exercising his right to determine the access of others

to his property. To be more precise, access without the owner’s consent concerns a

non-owner’s right to be included and access with his consent concerns the

landowner’s right to allow non-owners to have access to his land.15 For the purposes

of this chapter, access rights are either granted by law (non-consensual) or are

consensual.

Non-owners’ access rights result from competing claims to use, possess or

enjoy property. There are a number of circumstances in which a non-owner can have

access to property owned by another. I explain these circumstances with reference

13

Ellickson RC “Two cheers for the bundle of sticks metaphor, three cheers for Merrill and Smith”

(2011) 8 Econ Journal Watch 215-222 218-220; Dagan H Property: Values and institutions (2011) 38.

14 Kelly DB “The right to include” (2014) 63 Emory Law Journal 857-924 866.

15 866.


107

to the origin of access rights and the nature and use of the property involved.16

Firstly, access rights to be on or to pass over any kind of land, whether it is private,

public or quasi-public, can flow directly from non-property constitutional rights such

as life, dignity and equality. In this context, I consider situations where conflicting

claims to the use of property involve access to privately owned land with restricted

access to specific people, such as farm workers, who already have access to it for

specific purposes but want to exercise their non-property constitutional rights. Some

of the cases in this category also involve access claims to quasi-public land such as

public accommodations for purposes of exercising the rights in question.

Secondly, access rights can be derived from statutory provisions giving effect to

constitutional rights such as secure tenure, housing, labour rights (strikes and

pickets), freedom of movement and freedom of speech; or from legislation that

provides statutory access rights but is not directly aimed at giving effect to a

constitutional right. As appears from the discussion of the case law in section 3 3

below, the conflict in this category mostly deals with the clash between the

landowners’ right to exclude and access rights to quasi-public places like shopping

malls and privately-owned places where non-owners cannot freely have access. The

conflict usually involves a landowner who wants to exclude or evict non-owners who

want to use his land for purposes that move outside of his permission to enter, such

as to exercise the right to freedom of movement, freedom of speech, demonstrate

and picket or exercise religious and cultural rights. The ability to exercise these

16

For purposes of the distinction between different sources of limitations I rely on the distinction set

out in Van der Walt AJ “The modest systemic status of property rights” (2014) 1 Journal for Law,

Property and Society 15-106. Since my aim is to structure my overview of the large volume of the

limitations that involve access (Chapter 3) in a way that will allow me to assess the differences

between categories of justification (Chapter 4), it is not necessary at this point to reconsider this

distinction critically.


108

freedoms and rights depends on whether non-owners have access to various places

where these rights can be exercised.

Thirdly, access rights can stem from common law principles that limit the right

to exclude, on a non-consensual basis. In this category I consider conflicts arising

from non-consensual servitudes (the right of way of necessity) and encroachments,

where common law principles limit the right to exclude. These conflicts mostly

involve private land.

The right to exclude applies and can be discussed in different contexts and the

basis and extent of the exclusionary rule depends on the nature of the property

involved. The extent of access rights differs depending on whether the property is

privately owned land not open to the public (private home) or whether it is privately

owned land not open to the public but with restricted access; privately owned land

open to the public for commercial or other specified purposes (quasi-public

premises, such as shopping malls); and whether it is publicly owned land open to the

public, either generally or with restricted access (public premises, such as

pavements, public parks or government airports).17

Generally, the owner of a private home has a legal right to exclude others from

his property. In a private home, the scope for non-owners acquiring or exercising

access rights is limited, and the exclusionary power is mostly unchallengeable.18 The

17

Singer JW Introduction to property (2nd

ed 2005) 27.

18 In Golden Gateway Center v Golden Gateway Tenants Association 26 Cal 4

th 1013 (2001) 1022,

the court pointed out that the free speech clause in the California Constitution did not protect the right

of a tenants association to distribute its newsletter in a privately owned apartment complex against

the objections of the landlord. The court reasoned that the exclusionary character of a private

apartment complex made it significantly different from places that voluntarily open their doors to the

public. See also Golinger J “Shopping in the marketplace of ideas: Why Fashion Valley Mall means


109

private homeowner is in a position to determine who may have access to his

property because it is not open to the public.19 Because of the need for individual

privacy, it seems reasonable to protect the right to exclude others when a private

home is concerned.20 Protecting the right to exclude in a private home is easier to

justify because a relatively high degree of privacy is closely related to and important

for human flourishing, which is associated with personal development.21 The privacy

of a landowner can also be used as a strong claim to justify exclusivity in the context

of the family home.22 In line with the conception of ownership in South African law, a

private homeowner is presumed to have the right to exclude others. Even so, the

right to exclude in a private home is subject to limitations, although it is strong.23

However, the point is that a private homeowner’s exclusionary right is relatively

stronger than the exclusionary right in public or quasi-public places, since there are

fewer justified reasons to regulate access to a private home.

The right to exclude becomes weaker in the case of privately owned land that is

open to the public, either generally or in a more restricted sense. In this instance, the

Target and Trader Joe’s are the new town squares” (2009) 39 Golden Gate University Law Review

261-289 269-270.


nd ed 2005) 27; Alexander GS & Peñalver EM An introduction

to property theory (2012) 130-131.


property discourse” 1998 Acta Juridica 235-281 246-247.


(1995) 58 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 396-420 411; Radin MJ “Property

and personhood” (1982) 34 Stanford Law Review 957-1016.


property discourse” 1998 Acta Juridica 235-281 244.


nd ed 2005) 27 argues that although the right to exclude in a

private home is stronger, it is nevertheless subject to limitations. Alexander GS & Peñalver EM An

introduction to property theory (2012) 131 argues that a private homeowner does not have an

absolute right to exclude others from entering or having access to his property.


110

right to exclude is challengeable – the private property owner loses the higher

degree of exclusionary power normally associated with purely private property, such

as a home.24 For example, the right to exclude others from businesses that are open

to the public (quasi-public) is not as broad as in a private home, even though the

property is also privately owned.25 The landowner’s right to exclude is already

qualified because the landowner voluntarily opened his property to the public to use

for designated purposes, and this imposes a duty on him to give access to and serve

the public.26 In some instances, the relativity of the right to exclude from premises

that are open to the public may be underscored by laws that prohibit discrimination.

Exclusion of non-owners from some public (state-owned) property premises is

generally restricted, as the public is usually permitted to enter public premises for its

public benefit. However, not all state-owned or public property is available for public

use and access. American courts draw a distinction between two kinds of state-

owned property, namely public forums (state-owned property that has been open to

the public by tradition or designation, such as parks and streets or sidewalks) and

non-public forums (state-owned property to which the general public does not

ordinarily have access).27 A third kind of state-owned property is property that is

open to the public but with restricted access for certain limited purposes. Depending

24

Opperwall SG “Shopping for a public forum: Pruneyard Shopping Center v Robins, publicly used

private property and constitutionally protected speech” (1981) 21 Santa Clara Law Review 801-844

812; Gray K & Gray SF “Civil rights, civil wrongs and quasi-public space” (1999) 4 European Human

Rights Law Review 46-102 90.


26 As reflected in the sections below, the right to exclude in cases of businesses open to the public is

limited by non-property constitutional rights or regulatory laws.

27 Moon R The constitutional protection of freedom of expression (2000) 148.


111

on the kind of property, the state may impose reasonable time, place and manner

restrictions on access rights, if these regulations serve an important state interest.28

Although ownership embraces the right to exclude non-owners from property,

the significance and force of the right depends on the type of land involved. It is

therefore significant to distinguish between different categories of land. Furthermore,

exclusion of non-owners from land is often based on the behaviour of non-owners29

and on the nature, use and function of the land.30

In this chapter I adopt a constitutional perspective and consider the limitations

on the right to exclude with reference to their origins. The conclusion in Chapter 2

shows that the normative question whether to limit ownership is taken before the

dispute arises. This implies that a normative question is not taken in all access

disputes because the question has already been considered by the legislature. It is

therefore important in this chapter to consider access rights that limit the right to

exclude according to their origins to determine the nature of a specific limitation. The

28

The public has a right to enter public forums for expressive activities such as exercising the right to

freedom of speech and general restrictions, such as an absolute prohibition of a particular type of

expression, will be upheld only if they are narrowly tailored to accomplish a compelling governmental

interest and leave open alternative channels of communication. See Moon R The constitutional

protection of freedom of expression (2000) 148; United States v Grace 461 US 171 (1983) 176-178.

In International Society for Krishna Consciousness v Lee 505 US 672 (1992), the US Supreme Court

held that an airport terminal operated by a public authority is a non-public forum that could be closed

to all except those who have legitimate business there.

29 Pfeffer RE “Losing control: Regulating situational crime prevention in mass private space” (2006) 59

Oklahoma Law Review 759-808 769-770. See also Victoria and Alfred Waterfront (Pty) Ltd and

Another v Police Commissioner, Western Cape and Others (Legal Resources Centre as Amicus

Curiae) 2004 (4) SA 444 (C).

30 Gray K & Gray SF “Civil rights, civil wrongs and quasi-public space” (1999) 4 European Human

Rights Law Review 46-102 90 state that there may in fact be a spectrum of differing intensities of

exclusory power extending from the purely private zone through a group of quasi-public premises

towards a category of genuinely public property.


112

origin can therefore have a bearing on how strong the normative reason for the

limitation is, and also on how strong the limitation itself is compared to the right to

exclude. In this chapter I discuss different categories of limitations such as limitations

deriving directly from non-property constitutional rights; limitations imposed by

legislation (giving effect to a non-property constitutional right, and not directly giving

effect to a non-property constitutional right); and limitations imposed by common law.

This chapter considers limitations on the right to exclude primarily in the South

African context, with some references to comparable examples from other legal

systems. United States (US) public accommodations laws that, regulate non-owners’

access rights to privately owned land, together with rights and freedoms protected

under the United States Constitution, represent a significant limit on the right to

exclude. Problems concerning access rights that impose limitations on the

landowner’s right to exclude are also found in English, Scots, and Canadian law. In

this chapter, I consider examples from these legal systems with the aim of identifying

additional examples of access rights to land. The chapter does not attempt to cover

any foreign jurisdiction in full or discuss all the case law concerning instances in

which access rights limit the right to exclude, but only considers a selection of

important and relevant cases.31

3 2 Limitations deriving directly from non-property constitutional rights

Excluding non-owners from private or quasi-public property can sometimes limit their

potential to exercise their constitutionally protected non-property rights. If a

landowner voluntarily opens his property to the public for some benefit to himself, he

31

Most of the cases discussed in this chapter have been central to the exclusion and access rights

debate of the progressive scholars.


113

simultaneously adopts responsibility to respect the public’s constitutionally

guaranteed non-property rights as far as these relate to access to his property.32

Consequently, the Constitution may impose limitations on the property owner’s right

to exclude. This causes a potential conflict between property and non-property rights

that are enshrined in the Constitution.

Non-property constitutional rights such as the right to life, human dignity and

equality are generally not subject to democratic deliberation, regulation and

limitation.33 The main issue is whether landowners can exclude others from their

property in the process of exercising their property rights when non-owners use the

land to exercise their non-property constitutional rights.

In jurisdictions that have a constitution as their supreme law, rights to private

property, in particular the right to exclude, cannot be regarded as unqualified rights.34

The right to exclude is restricted by substantial limitations to protect non-property

rights embodied in the Constitution. The limitations originate directly from non-

property constitutional rights, as appears from case law.35 Some decisions

demonstrate a significant interest in favour of non-owners’ access rights to land

32

Golinger J “Shopping in the marketplace of ideas: Why Fashion Valley Mall means Target and

Trader Joe’s are the new town squares” (2009) 39 Golden Gate University Law Review 261-289 286.

33 In this regard, I am indebted to Van der Walt AJ “The modest systemic status of property rights”

(2014) 1 Journal for Law, Property and Society 15-106 45.


rd ed 2011) 215; Van der Walt AJ Property and

Constitution (2012) 29.

35 Fourways Mall (Pty) Ltd and Another v South African Commercial Catering and Allied Workers

Union and Another 1999 (3) SA 752 (W); Victoria and Alfred Waterfront (Pty) Ltd and Another v Police

Commissioner, Western Cape and Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA

444 (C); Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); Growthpoint

Properties Ltd v South African Commercial Catering and Allied Workers Union and Others (2010) 31

ILJ 2539 (KZD). See also Hattingh and Others v Juta (CCT 50/12) [2013] ZACC 5 (14 March 2013),

where the landowner’s rights were balanced with the occupier’s right to family life.


114

based on the right to life, dignity and equality, in conflict with the landowner’s right to

exclude.36 Courts treat the right to exclude as a non-absolute, restricted right that is

justifiably and inevitably limited by non-property constitutional rights.

The right to equality is slightly different from the right to life and dignity because

its recognition and protection often takes place in a regulatory framework. Although

the limitation of the right to exclude originates directly from the relevant provision in

the South African Constitution,37 in the same way as with the right to life and dignity,

the equality limitation is ultimately embodied in legislation. The Promotion of Equality

and Prevention of Unfair Discrimination Act (PEPUDA)38 regulates the right to

equality to the extent that the limitation of the right to exclude is not imposed directly

by the constitutional provision but by the legislation. PEPUDA gives effect to a

constitutional right (equality and non-discrimination) in the same way that public

accommodations laws in the US regulate the right to non-discrimination. However,

the right to equality remains unqualified just like the right to life and dignity to the

extent that PEPUDA regulates its enforcement but does not subject it to statutory or

regulatory delineation. The right to life, dignity and equality illustrate the same point,

that the right to exclude is not absolute but can be limited by law to secure non-

property constitutional rights.

In the case of State of New Jersey v Shack39 the US Supreme Court

recognised that the right to life and dignity of migrant farmworkers would be limited if

private farm owners are allowed to exercise their right to exclude without restrictions.

36

Van der Walt AJ “The modest systemic status of property rights” (2014) 1 Journal for Law, Property

and Society 15-106 46.

37 Section 9 of the Constitution of the Republic of South Africa, 1996 (equality).

38 Act 4 of 2000.

39 58 NJ 297 (1971).


115

The case concerned two defendants (an attorney and a health service worker) who

entered privately owned land to assist migrant farmworkers, who were employed and

housed on the property, with information on governmental health care and legal

services. The land was private property with restricted access, accessible to a

restricted group of people only, namely the migrant farmworkers who had been

granted limited access for specific purposes.40 The case deals with the access rights

of the defendants and not of the migrant workers, since the latter already had access

to be on the land. The farm owner sought to exercise his exclusionary powers by

demanding that the defendants leave his property. Upon refusal to leave the land,

the defendants were convicted for trespass. However, on appeal, the New Jersey

Supreme Court held that there was no breach of the right to exclude and that

trespass had not occurred. The court held that the farm owner’s property right, the

right to exclude, was not absolute and had to be accommodated with the interests of

others (defendants). The court further held that the farm owner’s title to land does

not include dominion over farmworkers whom the owner allows to work and live on

his farm.41

State of New Jersey v Shack highlights the fact that fundamental human rights

cannot be limited to protect and uphold property rights.42 The defendants’ access to

the privately owned land, for visiting purposes, was significant to the migrant

farmworkers’ wellbeing and to secure and support their non-property constitutional

40




42 Alexander GS “The social-obligation norm in American property law” (2009) 94 Cornell Law Review

745-820 808; Alexander GS & Peñalver EM “Properties of community” (2009) 10 Theoretical Inquiries

in Law 127-160 149-154.


116

rights to life, dignity and equality.43 The court stressed the importance of human

dignity when it overruled the landowner’s attempt to deny access to the visitors of

migrant workers. The Supreme Court held that:

“The employer may not deny the worker his privacy or interfere with his

opportunity to live with dignity and enjoy associations customary among our

citizens. These rights are too fundamental to be denied on the basis of an

interest in real property and too fragile to be left to the unequal bargaining

strength of the parties.”44

The ruling in State of New Jersey v Shack to grant the defendants access to land

was essential to afford the migrant farmworkers the opportunity to meet their human

needs, including interacting with the defendants to be informed of basic life-

supporting services.45 State of New Jersey v Shack confirmed that an owner must

expect to find the absoluteness of his property rights curtailed by the organs of state

for the promotion of the best interests of others for whom these organs also operate

as protective agencies. In Folgueras v Hassle46 the court concurred with the decision

in State of New Jersey v Shack, concluding that:

“The property rights of the camp owner do not include the right to deny access to

his camp to guests or persons working for any government or private agency

whose primary objective is the health, welfare or dignity of the migrant workers

as human beings.”

43




45 State of New Jersey v Shack 58 NJ 297 (1971) 303-304 the court pointed out that migrant farm

workers are a rootless and isolated community and are often unaware of the opportunities that exist

for them to meet their needs.

46 331 F Supp 615 (1971) 624. See also Gray K & Gray SF “Civil rights, civil wrongs and quasi-public

space” (1999) 4 European Human Rights Law Review 46-102 67.


117

Both State of New Jersey v Shack and Folgueras v Hassle concerned access to

privately owned land for purposes of offering government services to migrant

workers. The courts considered whether the owner of a migrant labour camp can

deny access to visitors or government representatives seeking access to the labour

camp to see migrant workers. In both cases, the courts held that the owner may not

deny such access to his property. Exclusion of the visitors does not only impact on

their constitutional rights and freedoms, but would also infringe upon the migrant

workers’ constitutional rights to life, dignity, religion and association as well as their

tenancy rights.

Concerning the right to life (or a livelihood), the Supreme Court of India held in

Olga Tellis v Bombay Municipal Corporation (Tellis)47 that the right to life is one of

the fundamental constitutional rights that cannot be waived. The case concerned the

forcible eviction of pavement and slum dwellers in the city of Bombay in India.

According to the Supreme Court, eviction or exclusion of the pavement and slum

dwellers would amount to a violation of their right to livelihood.48

The Tellis decision was cited in the South African case of Victoria and Alfred

Waterfront (Pty) Ltd and Another v Police Commissioner, Western Cape and Others

(Legal Resources Centre as Amicus Curiae) (Victoria and Alfred Waterfront),49 in

which the court confirmed that the right to exclude can be limited in instances where

the right to life depends on reasonable access to land. The case involved access to

47

(1986) SC 180 para 32. See also Tellis and Others v Bombay Municipal Corporation and Others

[1987] LRC (Const) 351.

48 The right is guaranteed by Article 21 of the Constitution of India 1949, which provides that no

person shall be deprived of his life except according to procedure established by law. See Olga Tellis

v Bombay Municipal Corporation (1986) SC 180 para 32. See also Liebenberg S Socio-economic

rights: Adjudication under a transformative constitution (2010) 123 for a brief discussion of the case.

49 2004 (4) SA 444 (C).


118

a quasi-public place for a purpose, namely begging, that was not the purpose the

owner had in mind when he opened his property to the public. The court ruled

against the landowners, stating that:

“The issue of begging frequently raises a direct tension between the right to life

and property rights. In that event, the property rights must give way to some

extent. The rights to life and dignity are the most important of all human rights. By

committing ourselves to a society founded on the recognition of human rights we

are required to value those rights above all others.”50

Exclusion of non-owners in this case would amount to a violation of the constitutional

right to life, which may be negatively affected if non-owners are prohibited from

begging (which is regarded as a source of their livelihood). The court held that the

right to life encompasses more than “mere animal existence”, since it includes the

right to a livelihood.51

The cases discussed above indicate that the right to exclude is directly and

justifiably limited by constitutional provisions to ensure that non-property

constitutional rights are secured when the exercise of those rights depend on access

to land.52 Regardless of whether the property is private land with restricted access to

a specific group of people or whether a quasi-public space, the result was the same,

namely that the right to exclude was limited to protect constitutional rights, such as

the right to life and dignity, which cannot be qualified.

50


Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA 444 (C) 448-451.

51 Liebenberg S Socio-economic rights: Adjudication under a transformative constitution (2010) 122

mentions that the right to life has been interpreted to incorporate the basic necessities of life such as

adequate nutrition, clothing, reading facilities; the right to a livelihood; the right to shelter; the right to

health care; and the right to education.




119

A similar conclusion follows from cases involving a clash between the

landowner’s right to exclude and the right to equality of non-owners who want access

to land but are excluded on grounds relating to their race, disability, gender or any

other ground that may result in an unfair discrimination.53 For example, non-owners

have a right under the US public accommodations laws to access public

accommodations for particular services offered in those places, free from

discrimination. Public accommodations consist of individual private establishments

that are open to and serve the public, such as restaurants, inns, gas stations and

places of entertainment.54 The Civil Rights Act confers jurisdiction upon the courts to

provide injunctive relief against discrimination in places of public accommodation,

stating that all persons shall be entitled to the full and equal enjoyment of the goods,

services, facilities and privileges of any place of public accommodation, without

discrimination or segregation on the grounds of race, colour, religion or national

origin.55 The Act provides the public with a right of reasonable access to all

businesses and facilities that are open to the public.56

53

See section 9(3) of the Constitution of the Republic of South Africa, 1996.

54 These establishments are regulated under Title II of the Civil Rights Act of 1964. See also Singer

JW “No right to exclude: Public accommodations and private property” (1996) 90 Northwestern

University Law Review 1283-1497 1288; Singer JW Introduction to property (2nd

ed 2005) 31.

55 See section 201(a) of the Civil Rights Act of 1964.

56 In Uston v Resorts International Hotel Incorporation 445 A2d 370 (NJ 1982) 373-375 the court held

that the common law no longer entitles the owner of a quasi-public premise to arbitrarily exclude

anyone for any reason. The court emphasised that the landowner has a duty not to act in an arbitrary

or discriminatory manner towards persons who enter premises that the landowner has opened up for

general public access for his own economic reasons. According to Singer JW Introduction to property

(2nd

ed 2005) 26, apart from access rights under the public accommodations laws, other access rights

include the power of the police to trespass when in hot pursuit of suspects; the rights of neighbours

who have mistakenly occupied or improved property belonging to another; situations where the non-

owner has exceeded the scope of the landowner’s permission, such as holdover tenants who stay

beyond the end of the lease term; and rights that non-owners may have to enter private property in


120

The 1990 Americans with Disabilities Act expanded the concept of public

accommodations to include educational institutions, doctors’ and lawyers’ offices,

retail stores, barber shops and funeral parlours.57 Public accommodations laws

protect non-owners’ rights to enter establishments that are open to the public without

invidious discrimination.58 Singer states that access rights to private property that is

open to the public under the public accommodations laws is the most significant

limitation on the right to exclude.59

South African law does not have specific public accommodations laws that

regulate access to places that serve the public.60 However, general anti-

discrimination legislation was enacted to give effect to the constitutional right to

equality, with the comparable result of prohibiting exclusion from privately owned

land that is open to the public on the basis of unfair discrimination.61 PEPUDA62

makes provision for a general prohibition against unfair discrimination and prevention

furtherance of their personal or property interests. The other access rights mentioned here also exist

in South African law and they are discussed in this chapter and the rest of the dissertation, only in

light of the South African context.

57 See also Singer JW Introduction to property (2

nd ed 2005) 32.


nd ed 2005) 26, 30. See also in this regard Van der Walt AJ


ed 2011) 299-301; Van der Walt AJ Constitutional property clauses: A

comparative analysis (1999) 432-443; Singer JW “Property and equality: Public accommodations and

the Constitution in South Africa and the United States” (1997) 12 South African Public Law 53-86;

Singer JW “No right to exclude: Public accommodations and private property” (1996) 90 Northwestern

University Law Review 1283-1497.


nd ed 2005) 26.

60 Given that the US has public accommodations laws that grant non-owners access rights to private

property that is open to the public, it was necessary to consider examples of instances where access

rights limit the landowner’s right to exclude. Identifying examples of access rights under US public

accommodations laws makes an interesting case for comparison.

61 See the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).

62 Sections 7, 8 and 9 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of

2000.


121

of exclusion of persons on the grounds of race, gender and disability, respectively.

PEPUDA differs in its setup from the US public accommodations laws but the effect

is similar. The most striking difference between PEPUDA and US public

accommodations laws is that firstly, PEPUDA provides for a general prohibition and

prevention of unfair discrimination by either the state or any private person.63

Secondly, PEPUDA applies to all types of land, including private property that is not

open to the public,64 whereas the Civil Rights Act does not apply to a private club or

other establishments that are in fact not open to the public, except to the extent that

the facilities of such establishments are made available to the customers or

patrons.65 It might appear that the Civil Rights Act qualifies the right to equality

insofar as it opens room for institutions that are outside the scope of the Act to

engage in exclusionary practices on their premises. Despite the differences,

PEPUDA and US public accommodations laws have a similar effect on the right to

exclude. These laws place limitations on the landowners’ right to exclude non-

owners from private or quasi-public land, to promote equality and prevent unfair

discrimination. The idea is that the exclusion of non-owners in these contexts will

infringe or undermine a fundamental, unqualified right to equality. Under these laws,

landowners are likely to bear the burden of justifying their actions when they want to

exclude non-owners because the promotion of equality and prevention of unfair

discrimination is, in such instances, dependent on access to land.

63

See chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

64 See the schedule (in terms of section 29) of the Promotion of Equality and Prevention of Unfair

Discrimination Act 4 of 2000, which provides an illustrative list of unfair practices in certain sectors,

including housing, accommodation, land and property.

65 See section 201(e) of the Civil Rights Act of 1964.


122

The examples discussed above show when and how far the right to exclude is

limited to secure non-property constitutional rights.66 Although life, dignity and

equality are unqualified constitutional rights, this does not imply that people who

want to exercise these rights have free access to privately owned land or quasi-

public land. These rights are not limited by law or regulation but they do not grant

non-owners free access to property belonging to another person either.67 A

landowner cannot exercise his right to exclude when it affects non-owners whose

rights to life, dignity and equality depend on reasonable access to the land, and to

that extent the right to exclude as an entitlement of ownership is limited by conflicting

non-property constitutional rights.68 Furthermore, when these rights are in conflict

with the right to exclude, it is assumed that they cannot be weighed or balanced with

the right to exclude to determine the appropriate outcome, since balancing or any

qualification would undermine the fundamental status of these non-property

constitutional rights. Cases involving the clash between the landowner’s right to

exclude and the right to life, dignity and equality therefore suggest that courts ought

not to allow the right to exclude to automatically trump these non-property

constitutional rights.69

However, the trumping effect of the non-property constitutional rights discussed

above is limited to a reasonably clearly demarcated set of circumstances, where the

landowner’s right to exclude will have to give way. As the cases indicate, this effect

is limited to instances where the property is either generally or specifically open to

66






nd ed 2005) 26.

69 Currie I & De Waal J The bill of rights handbook (6

th ed 2013) 388.


123

access by the affected group of non-owners in the first place, and where their

continued access to or use of the land is vital to the exercise of their other

constitutional rights. Furthermore, the result does not leave the landowner at the

mercy of the non-owners in question. A landowner can impose time, place and

manner restrictions that are necessary and reasonable in a particular context.

3 3 Limitations imposed by legislation

3 3 1 Legislation giving effect to a non-property constitutional right

The cases in the previous section deal with non-property constitutional rights,

namely life, dignity and equality that directly limit property rights. In this section I

consider cases that involve access to quasi-public spaces such as shopping malls,

and cases that involve access to and use of privately owned land with restricted

access.

The access rights involved here relate to non-property constitutional rights like

freedom of speech, strike and picket and freedom of movement. Unlike the right to

life, dignity and equality, these rights are subject to limitation and regulation in the

same way as property rights (the right to exclude). In that sense, the right to freedom

of movement, freedom of speech, strike and picket can be weighed up against

property when the two sets of rights conflict. The question is whether the exercise of

these rights is compatible with the normal use of the particular place. The examples

that deal with this kind of use of quasi-public land show that, the right to exclude is

sometimes statutorily limited or regulated to allow exercise of the non-property rights.

The first set of examples deals with the exercise of the right to freedom of speech on

quasi-public land.


124

One of the core elements of freedom of speech is the right to speak in public

places such as public parks and shopping malls. Public places offer members of the

public a forum to exercise their free speech rights.70 However, when public places

are privately owned the owners sometimes regulate behaviour in these places by

enforcing the right to exclude. Accordingly, members of the public who may want to

engage in speech activities in these places require the consent of the owner.

The First Amendment to the United States Constitution provides a basis for the

protection of freedoms concerning religion, expression, assembly and the right to

petition in American society.71 In cases involving the right to exclude non-owners

from private property and non-owners’ competing rights that are entrenched in the

Constitution, the US Supreme Court has made it clear that the Constitution in its First

Amendment protection of the freedoms of religion, speech, press and assembly does

not guarantee general access rights to private property, such as a shopping mall.72

An exception to this basic rule is that individual states are free to extend greater

protection to their citizens’ rights under their state constitutions.73 This exception was

70

Mulligan J “Finding a forum in the simulated city: Mega malls, gated towns and the promise of

Pruneyard” (2004) 13 Cornell Journal of Law and Public Policy 533-562 535.

71 The First Amendment to the United States Constitution (1791) states that “Congress shall make no

law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the

government for a redress of grievances.”

72 Hudgens v National Labor Relations Board 424 US 507 (1976) 519-520; Lloyd Corp Ltd v Tanner

407 US 551 (1972) 569-570. See also Opperwall SG “Shopping for a public forum: Pruneyard

Shopping Center v Robins, publicly used private property and constitutionally protected speech”

(1981) 21 Santa Clara Law Review 801-844 802; Alexander MC “Attention, shoppers: The First

Amendment in the modern shopping mall” (1999) 41 Arizona Law Review 1-48 1, 18; Gray K & Gray

SF “Civil rights, civil wrongs and quasi-public space” (1999) 4 European Human Rights Law Review

46-102 80.

73 Alexander MC “Attention, shoppers: The First Amendment in the modern shopping mall” (1999) 41

Arizona Law Review 1-48 18. Golinger J “Shopping in the marketplace of ideas: Why Fashion Valley


125

first examined in Marsh v Alabama,74 in which the Supreme Court addressed the

question whether First Amendment free speech guarantee extends to privately

owned property. In Lloyd Corp Ltd v Tanner75 it was suggested that there may also

be a First Amendment right of access to private property where all other adequate

alternative avenues for speech are barred. Private property (such as the private

company town in Marsh v Alabama76 and the shopping mall in Lloyd Corp Ltd v

Tanner and similar cases) is deemed a public space when it effectively replaces the

local downtown, which is the primary place for the public to exercise their freedoms

and rights.77 Privately owned shopping malls and company towns acquire a public

Mall means Target and Trader Joe’s are the new town squares” (2009) 39 Golden Gate University

Law Review 261-289 262.

74 326 US 501 (1946). See also Opperwall SG “Shopping for a public forum: Pruneyard Shopping

Center v Robins, publicly used private property and constitutionally protected speech” (1981) 21

Santa Clara Law Review 801-844 805; Okula SJ “Towards rendering New York’s free speech clause

redundant: Shad Alliance v Smith Haven Mall” (1986) 60 St John’s Law Review 799-812 801 (with

reference to footnote 8); Gray K & Gray SF “Civil rights, civil wrongs and quasi-public space” (1999) 4

European Human Rights Law Review 46-102 80.

75 407 US 551 (1972) 567, 569. However, in Lloyd Corp Ltd v Tanner access was denied because

there were other alternatives for the exercise of speech and as long as these alternatives existed, the

Constitution did not permit an incursion into a mall owner’s private property rights. Such alternatives

would include the availability of public sidewalks, parks and streets adjacent to the store or shopping

complex from which the demonstrators can make their viewpoints known. See also Gray K & Gray SF

“Civil rights, civil wrongs and quasi-public space” (1999) 4 European Human Rights Law Review 46-

102 80 (with reference to footnote 22).

76 326 US 501 (1946) 513 defines a company town as an area occupied by numerous houses,

connected by pathways, which are either fenced or not as the private owners may choose. Generally,

a company town can be explained in the sense that the whole town belongs to a private company,

with all residential and other facilities included.

77 Mulligan J “Finding a forum in the simulated city: Mega malls, gated towns and the promise of

Pruneyard” (2004) 13 Cornell Journal of Law and Public Policy 533-562 536-539 states that shopping

centres have largely replaced the traditional business block in American downtowns as a marketplace

and community centre. In New Jersey Coalition Against the War in the Middle East v J.M.B Realty

Corp 650 A2d 757 (1994) 774 the court also recognised the total transformation of private property to

the mirror image of a downtown business district.


126

function in these conditions, and therefore expressive activity in those spaces must

be allowed.78 The US Supreme Court has recognised a speech right in places, such

as shopping malls, that are privately owned but that are functionally equivalent to a

public place. This functional equivalent doctrine was born out of the decision in

Marsh v Alabama.79 This decision laid the foundation for developing the notion that,

under certain circumstances, the use and nature of private property may subject it to

the public’s freedom to exercise constitutionally protected expression rights.80

However, time, place and manner restrictions can be applied by a landowner only if it

is reasonable to do so.

Marsh v Alabama involved a privately owned company that prevented a

member of the Jehovah’s Witnesses from distributing religious literature on the

sidewalks of a company town. The private company required members of the public

to seek prior written consent to solicit. The owners of the private company argued

that they had the right to exclude others. The court had to consider the content of

private ownership in the context of freedoms such as freedom of religion, speech

and assembly that are guaranteed by the First Amendment of the United States

Constitution.81 The court confirmed that owners generally have the right to exclude

non-owners from their property. However, ownership does not always mean absolute

78

Alexander MC “Attention, shoppers: The First Amendment in the modern shopping mall” (1999) 41

Arizona Law Review 1-48 47.

79 Marsh v Alabama 326 US 501 (1946) 506-508. See also Mulligan J “Finding a forum in the

simulated city: Mega malls, gated towns and the promise of Pruneyard” (2004) 13 Cornell Journal of

Law and Public Policy 533-562 542.

80 Opperwall SG “Shopping for a public forum: Pruneyard Shopping Center v Robins, publicly used

private property and constitutionally protected speech” (1981) 21 Santa Clara Law Review 801-844

806.

81 Marsh v Alabama 326 US 501 (1946) 509.


127

dominion.82 The court rejected the owners of the private company’s contention that

they have a right to exclude and held that their right to exclude had been diminished

because of the public’s invitation to gain access to the property. The First

Amendment protects the right to hand out leaflets on public streets, sidewalks and in

public places, albeit subject to reasonable time, place and manner restrictions.83 On

the facts of this case, a private company that held legal title to the entire town and

that had established a community with streets, homes and business, which is open

to the general public, was prohibited from preventing individuals from distributing

literature on the sidewalks of the town on similar grounds.84 The private company

had no authority to govern the community in such a way that it restricts the citizens’

fundamental liberties. The private company had become a state actor because it was

the functional equivalent of a municipality or a typical American town.85 The court

emphasised that if a private owner, for his benefit, opens up his property for use by

the general public, his property becomes confined by the statutory and constitutional

rights of members of the public who use the property.86 Marsh v Alabama highlights

82

Marsh v Alabama 326 US 501 (1946) 506, 509. See also Schiff EF “Right to picket on quasi-public

property” (1968) 25 Washington and Lee Law Review 53-59 56-57.

83 Marsh v Alabama 326 US 501 (1946) 504. See also First Unitarian Church of Salt Lake City v Salt

Lake City Corporation 308 F3d 1114 (10th Cir 2002).

84 Marsh v Alabama 326 US 501 (1946) 506. See Moon R “Access to public and private property

under freedom of expression” (1988) 20 Ottawa Law Review 339-375 358; Singer JW Introduction to

property (2nd

ed 2005) 78.

85 Marsh v Alabama 326 US 501 (1946) 507-509. See also Opperwall SG “Shopping for a public

forum: Pruneyard Shopping Center v Robins, publicly used private property and constitutionally

protected speech” (1981) 21 Santa Clara Law Review 801-844 807.

86 Marsh v Alabama 326 US (1946) 505-506. See also Batchis W “Free speech in the suburban and

exurban frontier: Shopping malls, subdivisions, new urbanism and the First Amendment” (2012) 21

Southern California Interdisciplinary Law Journal 301-358 317.


128

the court’s recognition that the right of free speech occupies a preferred position as

against the competing rights of a private property owner.87

This move away from the strong view of the exclusionary powers of private

owners is continued in PruneYard Shopping Center v Robins,88 which dealt with

questions concerning First Amendment rights (free speech) on privately owned

property that is generally open to the public. The PruneYard case concerned

students who were ejected from a shopping mall for distributing anti-Zionist literature.

The question before the court was whether the owner of a shopping centre has the

right to exclude a group of students from distributing leaflets and soliciting petition

signatures on the premises of the shopping centre. The California Supreme Court

found that the California state Constitution protects speech and petitioning that is

reasonably exercised on private property.89 Furthermore, it held that the shopping

mall had taken on the character of a public forum and that its owner could therefore

not limit free speech in it. The landowner could therefore not exclude the students.

The US Supreme Court upheld the California Supreme Court’s decision. The court

acknowledged that one of the essential sticks in the bundle of property rights is the

right to exclude others but ruled that the landowner’s right to exclude can be

87

Schiff EF “Right to picket on quasi-public property” (1968) 25 Washington and Lee Law Review 53-

59 56.

88 447 US 77 (1980).

89 Article 1, section 2(a) of the California Constitution (1849) provides that every person may freely

speak, write and publish his or her sentiments on all subjects, being responsible for abuse of this right

and that a law may not restrain or abridge liberty of speech or press. In Pruneyard the court ruled that

the California Constitution broadly proclaims speech rights; therefore shopping centres that are open

to the public can provide an essential forum for exercising speech rights. See Robins v Pruneyard

Shopping Center 592 P2d 341 (1979) 347. See also Golinger J “Shopping in the marketplace of

ideas: Why Fashion Valley Mall means Target and Trader Joe’s are the new town squares” (2009) 39

Golden Gate University Law Review 261-289 262-263.


129

regulated or altered by the state.90 Accordingly, in view of the strong protection for

free speech in the state Constitution, the students’ interest in exercising their right to

free speech outweighed the desire of private property owners to exclude them from

their property.

In New Jersey Coalition Against the War in the Middle East v JMB Realty Corp,

the court adopted a standard to determine when private property has been

sufficiently devoted to public uses to trigger constitutional obligations not to abridge

individual freedom of speech.91 This standard, the court explained, takes into

account the normal use of the property, the extent and nature of the invitation to the

public to use it, and the purpose of the expressional activity in relation to both its

private and public use.92 The New Jersey Supreme Court ruled that owners of a

shopping centre could not exclude persons handing out literature on their private

property but could impose reasonable restrictions. Accordingly, the Supreme Court

upheld access rights to the shopping mall on the principle that the constitutional right

of free speech cannot be determined by title to property alone. According to the

Supreme Court’s ruling, the state Constitution conferred a right of speech in privately

90

PruneYard Shopping Center v Robins 447 US 77 (1980) 82. It is important to note that the ruling in

PruneYard, which came shortly after Kaiser Aetna v United States 444 US 164 (1979), contradicts the

precedent set in Kaiser Aetna, namely that the right to exclude is one of the most essential sticks in

the bundle of rights that are commonly characterised as property and that a government order of

public access to a privately owned marina constituted a taking. In this regard see Epstein RA

“Takings, exclusivity and speech: The legacy of PruneYard v Robins” (1997) 64 University of Chicago

Law Review 21-56 22, who notes that the normal rules of private law treat the right to exclude as an

indispensable element of property.

91 650 A2d 757 (NJ 1994). See also Wood v State 2003 WL 1955433 (Fla Cir Ct 2003) in which the

court held that the Florida State Constitution prohibits a private owner of a quasi-public place from

using state trespass laws to exclude peaceful political activity.

92 New Jersey Coalition Against the War in the Middle East v J.M.B Realty Corp 650 A2d 757 (NJ

1994) 761.


130

owned regional shopping centres because these centres had essentially assumed

the role of a new downtown business district.93

The reasonable access rule also applies to public property such as a school.

When considering whether access should be granted to state property, the courts

consider whether or not the particular property is a public forum.94 Perry Education

Association v Perry Local Educators’ Association95 concerned a public school

system that granted one labour union access to the teachers’ mailboxes while

denying similar access to a rival union. The rival union contended that its First

Amendment rights had been violated, asserting that the mailboxes were a public

forum. The court held that an individual has a right under the First Amendment to

reasonable access for the purpose of communication.96 Such expressive activity can

take place in parks, streets and other places where by tradition, or by state

designation, the public has a general access right.97 The Supreme Court further held

that the powers of the state to limit expressive activity in such places are greatly

limited. Nevertheless, the state may restrict access to any property which is not a

public forum, provided the restriction is reasonable, taking into consideration the

time, place and manner of the expressive activity.98 However, the rival union could

93

New Jersey Coalition Against the War in the Middle East v J.M.B Realty Corp 650 A2d 757 (NJ

1994) 761.

94 Moon R “Access to public and private property under freedom of expression” (1988) 20 Ottawa Law

Review 339-375 345; Gray K & Gray SF “Civil rights, civil wrongs and quasi-public space” (1999) 4

European Human Rights Law Review 46-102 79 (with reference to footnote 18). See also Jakab P

“Public forum analysis after Perry Education Association v Perry Local Educator’s Association: A

conceptual approach to claims of First Amendment access to publicly owned property” (1986) 54

Fordham Law Review 545-562.

95 460 US 37 (1983).

96 Perry Education Association v Perry Local Educators’ Association 460 US 37 (1983) 45.

97 45.

98 45-46.


131

not have access to the mailboxes, since the mailboxes were not a public forum.99

The Perry case shows that owners of public property also hold exclusionary rights

that can be exercised when it is reasonable to do so. Furthermore, the case shows

that public access to public property for speech purposes, although protected by the

First Amendment, can be limited.100

The reasonable access rule also applies to public property owned by

government, such as an airport. In Committee for the Commonwealth of Canada v

Canada101 the Supreme Court of Canada ruled that access could not be arbitrarily

denied in respect of a government-owned airport terminal concourse. The court

viewed an airport terminal as bearing the earmark of a public arena or a

contemporary crossroads that is a modern equivalent of the streets.102 The court

confirmed that an absolute prohibition on political communication in the public areas

of government-owned airports was therefore contrary to the freedom of

expression.103 Furthermore, the court held that such prohibition constitutes a

limitation of free speech and the state cannot rely on its ownership rights (the right to

exclude) to impose a blanket ban on political speech on its premises. The public

spaces in the airport were owned for the benefit of the public and reasonable access

to such a public place could not be denied. The court applied the provision for

reasonable access and prohibited the owners from exercising their exclusionary

powers.

99

Perry Education Association v Perry Local Educators’ Association 460 US 37 (1983) 53.

100 Jakab P “Public forum analysis after Perry Education Association v Perry Local Educator’s

Association: A conceptual approach to claims of First Amendment access to publicly owned property”

(1986) 54 Fordham Law Review 545-562 545 (with reference to footnote 1).

101 [1991] 1 SCR 139 (SC) 141-142.

102 Committee for the Commonwealth of Canada v Canada [1991] 1 SCR 139 (SC) 142.

103 Freedom of expression is guaranteed by section 2(b) of the Canadian Charter of Rights and

Freedoms 1982.


132

The cases concerning free speech suggest that owners of large shopping malls

that are open to the public are not permitted to exercise their exclusionary powers in

a manner that overreach the fundamental rights of non-owners.104 Even in publicly

state owned property, access to such property may only be prohibited when it is

reasonable. The right to freedom of speech may be reasonably limited, but it cannot

be prohibited on property that is the equivalent of a public forum or on public

property. Freedom of speech is guaranteed on private property that is generally open

to the public and on public property that serves the purpose of a public forum. In

these instances, access for freedom of speech purposes is axiomatic if the exercise

of free speech is compatible with the use of the property and subject to reasonable

time, place and manner restrictions imposed by the owner.

The second set of examples of cases involves the exercise of the right to strike

and picket on quasi-public spaces and seem to make the same point. Private

property that is open to the public makes it possible for the public to use the property

for various purposes, which might include the right of labour unions or striking

workers to engage in peaceful picketing105 and also for the public to engage in public

demonstrations. The opening up of property to the general public transforms the

nature of that property from purely private to quasi-public, and such a transformation

has a bearing on the competing use rights of property owners and the public. The

question to consider here is whether, when and how the property owner or the public

can exercise their respective rights on the property.

104

Gray K & Gray SF “Civil rights, civil wrongs and quasi-public space” (1999) 4 European Human

Rights Law Review 46-102 77-78.

105 It is important to note that workers have an additional opportunity to picket on private property that

is not open to the public but where they work.


133

In Growthpoint Properties Ltd v South African Commercial Catering and Allied

Workers Union and Others106 the court considered a clash between the property

rights of owners and the constitutional right of strikers to freedom of expression, to

bargain collectively and to picket and demonstrate peacefully. The striking workers

were picketing and demonstrating loudly in a privately owned shopping mall, in so

doing allegedly disturbing and intimidating members of the public and disrupting

normal business operations.107 Growthpoint alleged that the noise made by the

strikers constituted a nuisance and a violation of its constitutional right to property.108

The court stated that the dispute required balancing the conflicting rights to strike

and picket on the one hand and other constitutional rights such as property, a

healthy environment and free trade on the other hand. Because South African law

does not recognise a hierarchy of rights, such a balancing requires the limiting of

each right, since no right is absolute.109 The court therefore did not grant an order

precluding picketing or demonstrations in the mall but ordered the strikers to lower

the noise so that they would not interfere with the property rights of Growthpoint.110

The court ruled in favour of the strikers by allowing them to have access to the

shopping mall for purposes of picketing and demonstrating in a manner prescribed

106

(2010) 31 ILJ 2539 (KZD) paras 55-60.

107 Growthpoint Properties Ltd v South African Commercial Catering and Allied Workers Union and

Others (2010) 31 ILJ 2539 (KZD) para 5.

108 Paras 7, 11, 15.


Others (2010) 31 ILJ 2539 (KZD) paras 34, 57. In Port Elizabeth Municipality v Various Occupiers

2005 (1) SA 217 (CC) para 23 the Constitutional Court clearly stated that different interests in land

should not be adjudicated in an abstract and hierarchical manner but rather the different interests

should be balanced and reconciled in a just manner, taking into account the historical and

constitutional context.


Others (2010) 31 ILJ 2539 (KZD) paras 60-61.


134

by the Labour Relations Act 66 of 1995. The outcome of the decision is that both the

owner’s right to exclude the strikers from the mall and workers’ right to strike and

picket have to be exercised in a manner that accommodates the other, since both

rights are subject to regulation.

In US law, the National Labor Relations Act (NLRA)111 protects the rights of

employees to form unions and engage in collective bargaining. The employer is

prohibited from interfering with these rights.112 This statute has been interpreted to

protect free speech rights of employees and non-employees who seek to

communicate with workers at their work site for the purpose of persuading

employees to join a union, to go on strike, or to engage in other labour practices

protected under the NLRA.113 Hudgens v National Labor Relations Board114

illustrates this point. The case concerned a mall owner who had threatened to press

trespassing charges against employees who were picketing at their employer’s store

located in the private shopping centre. The Supreme Court considered whether the

respective rights and liabilities of the parties are to be decided under the criteria of

the NLRA alone, or under the First Amendment standard, or under a combination of

the two.115 The court concluded that the NLRA might statutorily limit an employer’s

right to exclude if the purpose of this intrusion was to exercise rights to organise

workers into unions or engage in other collective actions protected by federal labour

111

Section 7 of the National Labor Relations Act of 1935.

112 Section 8 of the National Labor Relations Act of 1935.


nd ed 2005) 85.

114 424 US 507 (1976) 512.

115 Hudgens v National Labor Relations Board 424 US 507 (1976) 512.


135

laws.116 Even though the court acknowledged that the exercise of speech rights on

private property may in some cases be protected by state law, the warehouse

employees did not have a First Amendment right to enter a shopping centre to

strike.117 Nevertheless, in National Labor Relations Board v Calkins118 the court ruled

that a union’s right to picket trumps the owner’s right to exclude under the California

Constitution.

In Amalgamated Food Employees Union Local 590 v Logan Valley Plaza Inc,119

the owners of a shopping centre also sought to exclude picketers (union members)

from their property. The union members picketed in the parking lot, at the entrance

and exit of the shopping centre. The US Supreme Court, relying on the judgement in

Marsh v Alabama, decided that non-owners have access to a large shopping centre

for purposes of expressive freedom.120 The US Supreme Court held that a shopping

centre that was freely accessible and open to the public was the functional

equivalent of a downtown business district for First Amendment purposes.121

Furthermore, the court held that the private owner of a store located in the shopping

plaza could not exclude peaceful picketing by non-employees who were protesting

the store owner’s refusal to hire union labour. The court reasoned that, unlike an

116

424 US 507 (1976) 521. See also NLRB v Babcock & Wilcox Co 351 US 105 (1956), in which the

Supreme Court ruled that the NLRA imposed some limitations on an employer’s right to exclude non-

employee union organisers from its property.

117 Hudgens v National Labor Relations Board 424 US 507 (1976) 520-521.

118 187 F3d 1080 (9

th Cir.1999).

119 391 US 308 (1968).

120 Amalgamated Food Employees Union Local 590 v Logan Valley Plaza Inc 391 US 308 (1968) 319-

320.

121 Amalgamated Food Employees Union Local 590 v Logan Valley Plaza Inc 391 US 308 (1968) 319-

320. See also Opperwall SG “Shopping for a public forum: Pruneyard Shopping Center v Robins,

publicly used private property and constitutionally protected speech” (1981) 21 Santa Clara Law

Review 801-844 808.


136

individual’s home (which is not ordinarily open to the public), operating a space

where the public was permitted to freely gather entailed no privacy interest, and as a

result there was no blanket right to exclude, and therefore access should be granted

for the purpose of exercising First Amendment rights.122 With reference to Marsh v

Alabama, the court held that ownership is not absolute, for when an owner opens up

his property for use by the public his private property rights are circumscribed by the

public’s statutory and constitutional rights.123 The shopping centre, although privately

owned, was open to the public and therefore members of the public could not be

excluded; the owners had lost some of their power to exclude others.

The third example provides a similar explanation of the second part of the

South African Victoria and Alfred Waterfront124 decision, where the court dealt with

the tension between property rights and non-owners’ right to freedom of movement.

The court did not enforce the landowners’ right to permanently exclude non-owners

who had been creating a nuisance on private premises that are generally open to the

public. The right to exclude was qualified in several respects. The court distinguished

the large waterfront shopping complex in this case from ordinary restaurants or

shopping malls, noting that the location, size and composition of the privately owned

shopping complex rendered it for all practical purposes a suburb of Cape Town, to

which members of the public had a general invitation to visit.125 The right to freedom

122

Amalgamated Food Employees Union Local 590 v Logan Valley Plaza Inc 391 US 308 (1968) 324.

See also Forkosch M “Picketing in shopping centers” (1969) 26 Washington and Lee Law Review

250-270 256.

123 Marsh v Alabama 326 US 501 (1946) 506; Amalgamated Food Employees Union Local 590 v

Logan Valley Plaza Inc 391 US 308 (1968) 325.


Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA 444 (C).




137

of movement applies to large shopping malls and other quasi-public spaces that

function as public spaces, although this right cannot be exercised in ordinary

restaurants or shops because access in such places is limited. On this basis, the

court pointed out that the landowners did not have an absolute right to exclude and

as a result non-owners were not prohibited from entering the quasi-public premises;

only specific conduct can be prohibited on the premises. The nature and function of

the property limited or at least qualified the landowner’s right to exclude.

A blanket refusal of access to the quasi-public premises in Victoria and Alfred

Waterfront was likely to constitute a significant restriction on the right to freedom of

movement. Access to the quasi-public premises in this case was important for non-

owners to realise their constitutional rights. What becomes clear from the case is that

with regard to certain types of property, landowners of quasi-public premises do not

have an unqualified right to exclude others. To some degree, the landowner’s right to

exclude is limited on the basis of the constitutional protection and enforcement of the

right to freedom of movement on quasi-public premises. In appropriate instances, an

owner is prevented from denying access to non-owners who seek to exercise their

freedom of movement on his premises. The exercise of the right to freedom of

movement also impacts on the right to life and dignity. Therefore, exclusion of the

public resulting in the interference with their exercise of free movement amounts to a

derogation of fundamental human rights and freedoms. The right to exclude should

therefore give way to the right to freedom of movement and other fundamental rights

like the right to life, particularly where the type of property involved is such that

access to it is necessary for the realisation of these rights.

The fourth set of examples are slightly different from the cases discussed

above (which deal with access to quasi-public property) because it concerns access


138

to and use of privately owned land, including cases where no consent was granted

for initial access and cases where consent was granted. Legislative limitation of the

right to exclude can result from anti-eviction legislation, which protects the interests

of occupiers against unfair or unlawful eviction, for example by virtue of the

Extension of Security of Tenure Act (ESTA)126 and the Prevention of Illegal Eviction

from and Unlawful Occupation of Land Act (PIE).127 These acts set out stringent

procedures that a landowner has to follow prior to or when evicting occupiers from

his private land. Both acts have a similar effect, namely that they limit the

landowner’s right to exclude to prevent unjustified evictions of non-owners from

either rural or urban privately owned land.

However, PIE differs from ESTA because it regulates unlawful occupation of

land and consequently its measures do not create access rights because by

definition non-owners who are in unlawful occupation of land do not have rights.128

Rather, PIE protects unlawful occupiers against arbitrary eviction. ESTA creates

access rights and cases where it is applied concern access claims to privately

owned land with restricted access that is granted to a small, specific category of

people for use and occupancy purposes. The access to or use of land granted by

ESTA to non-owners may sometimes involve a permanent, physical invasion of the

private land.129 The right to exclude is in these cases limited by statutory provisions

that provide a broad category of access rights to non-owners residing on privately

126

Act 62 of 1997.

127 Act 19 of 1998.

128 In terms of section 1 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act

19 of 1998 an unlawful occupier is a person who occupies land or a building without the express or

tacit consent of the owner or person in charge or without another right in law to occupy.

129 Van der Walt AJ “The modest systemic status of property rights” (2014) 1 Journal for Law,

Property and Society 15-106 74.


139

owned land. PIE places the same kind of limitation on the right to exclude but the

limitation is not based on access rights; instead, PIE impose limitations on the right

to exclude on the basis of anti-eviction policy.130

As was mentioned in Chapter 2, in private law the landowner’s right to exclude

assumes a strong position in the rights paradigm. Under the common law, the

landowner can (in addition to asserting any other of his ownership rights) enforce his

right to exclude by evicting unwanted occupiers with the rei vindicatio.131 Given that

the right to exclude is strong, courts normally do not have a general discretion to

deny the landowner’s application for an eviction order once the basic requirements

have been meet.132 However, in recent times the courts have dismissed actions

based on the rei vindicatio in certain instances. The Constitution, in particular section

26(3), which provides that no one may be evicted from their home without a court

order and only after all relevant circumstances have been considered, and PIE133

have amended the availability of the rei vindicatio with regard to the protection of

immovable property used mainly for residential purposes.

Section 26 of the Constitution, together with PIE, requires specific eviction

procedures that have to be complied with by a landowner before evicting people

130

Section 26(3) of the Constitution of the Republic of South Africa, 1996.


132 54.

133 PIE is an example of legislation that expressly grants the courts the discretion to refuse an

application for an eviction order on the basis of all the relevant circumstances of the occupiers.

Section 2 of PIE states that the Act applies to the eviction of unlawful occupiers in respect of all land

in South Africa. Section 4 of PIE requires that, before granting an eviction order, a court must be of

the opinion that “it is just and equitable to do so, after all the relevant circumstances, including the

rights and needs of the elderly, children, disabled persons and households headed by women”. See

also Liebenberg S Socio-economic rights: Adjudication under a transformative constitution (2010)

272.


140

from his land. Section 4(7) of PIE outlines specific circumstances that have to be

considered before the eviction order is granted. The procedure set out in PIE

protects unlawful occupiers by affording them proper judicial oversight in an eviction

process, intended to give effect to section 26(3) of the Constitution. The effect is that

PIE, read with section 26(3), delays the eviction until it has been determined that it is

just and equitable to evict the unlawful occupiers.134 Consideration of all the relevant

circumstances, namely the general historical, social and economic context as well as

the personal circumstances of the occupier, before an eviction order can be granted,

overrides the abstract application of the common law rei vindicatio.135 This is so

because the eviction order is not based purely on proof of the common law

requirements that the applicant is the owner and the occupier is in possession, but

on all relevant circumstances.136 Arguably, consideration of all relevant

circumstances amounts to a balancing process in which the landowner’s rights are

weighed against the interests of the occupiers. These anti-eviction measures

significantly qualify the landowner’s right to exclude because, in this context,

exclusion is dependent on the discretion of the courts to decide whether or not to

grant an eviction order after all the relevant circumstances have been considered.

Eviction of unlawful occupiers is possible, but the decision to evict is case-specific

and context-sensitive. Therefore, the landowner’s right to vindicate is restricted by

the Constitution and statutory regulation that protects occupiers against arbitrary or

unfair eviction. This is a clear instance where the landowner’s right to exclude is

134

Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA) para 17. See also Badenhorst PJ, Pienaar

JM & Mostert H Silberberg & Schoeman’s The law of property (5th ed 2006) 250.

135 Van der Walt AJ Property in the margins (2009) 43-44.

136 In Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA) the court held that an eviction cannot

be granted without considering the personal and socio-economic circumstances of the occupiers. In

instances where there are compelling circumstances or factors, the eviction should not be granted.


141

limited by virtue of legislation aimed at achieving constitutionally prescribed

outcomes in terms of specifically promulgated legislation.

In Port Elizabeth Municipality v Various Occupiers137 the court held that, in light

of section 26(3) of the Constitution and PIE, the courts should be reluctant to grant

eviction orders against unlawful occupiers unless the eviction order will be just and

equitable under the circumstances of each case. Van der Walt argues that the

judgment diminishes the landowner’s entitlement to exclude or evict unlawful

occupiers from his private land, since the eviction procedure prescribed by the anti-

eviction laws is expensive and time-consuming.138 In this instance, the landowner is

forced to allow unlawful occupiers to continue residing on his land against his will, at

least until the statutory requirements have been complied with.

Because of the requirements in PIE and section 26(3) of the Constitution, it is

uncertain when exactly an owner can succeed with the rei vindicatio. Some authors

have argued that the rei vindicatio is still available to protect ownership of business

premises, since PIE is not applicable to such premises but only to property used for

residential purposes.139 In this regard, the landowner can still employ the rei

vindicatio in so far as PIE is not applicable, to either business or residential

premises.

137

2005 (1) SA 217 (CC) paras 21-22.


rd ed 2011) 278.


th ed

2006) 254. Mostert H & Pope A (eds) The principles of the law of property in South Africa (2010) 217

argue that the rei vindicatio applies to evictions from land or property only when it is being used for

business, trade or industrial purposes, or when the defendant does not fit the definition of “unlawful

occupier” or “occupier” under PIE or ESTA. See also Ellis v Viljoen 2001 (4) SA 795 (C); Pope A

“Eviction and the protection of property rights: A case study of Ellis v Viljoen” (2002) 119 South Africa

Law Journal 709-720; Pienaar JM Land reform (2014) 690.


142

ESTA applies to lawful occupiers of rural land and it regulates the relationship

between the owner and lawful occupiers. ESTA provides access rights to occupiers

who reside on privately owned land and who had consent or another right in law to

do so.140 ESTA generally applies to instances where a landowner grants access to

non-owners on the basis of an employment contract that is linked to housing. For

example, a farm owner can grant access rights to farmworkers, entailing the

provision of housing that allows farmworkers to be on the farm for purposes of

working and housing. The farmworkers occupy land of which they are not registered

owners but holders of a personal right, protected by the land reform legislation

applying to lawful occupiers.141 The issue of exclusion is triggered when the

employment contract is terminated and the farm owner seeks to evict the

farmworker.

ESTA provides for instances when non-owners are allowed to have continued

access to the land against the landowner’s will, namely when the employment

contract is terminated. In that case, ESTA regulates the termination of the

permission to occupy and protects the farmworkers against arbitrary eviction, to give

effect to the right to secure tenure.142 The constitutional provision places an

obligation on the state to improve security of tenure by way of appropriate legislation

so that a person or community whose tenure of land is legally insecure as a result of

past racially discriminatory laws or practices is entitled, to the extent provided by an

Act of Parliament, either to tenure which is legally secure or to comparable

140

See section 1 of the Extension of Security of Tenure Act 62 of 1997.


th ed

2006) 663; Dhliwayo P Tenure security in relation to farmland (2012) unpublished LLM thesis

Stellenbosch University 113.

142 Section 25(6) read with section 25(9) of the Constitution of the Republic of South Africa, 1996.


143

redress.143 ESTA seeks to strengthen and secure weak and vulnerable interests in

land and this provides permanent or temporary security of tenure for lawful occupiers

and their families, who occupy land for residential purposes.144 The content of the

tenure rights includes the right to use the specific parcel of land, to reside on the

land, and to have access to services.145 The access rights created under ESTA are

enforceable against the landowner as well as his successors in title. Termination of

the rights can only occur when there are valid grounds, and under fair and

reasonable circumstances.

Section 8(2) of ESTA creates a link between employment and the right of

residence of occupiers employed on farmland. In some instances ESTA requires

farm owners to continue providing housing to farmworkers even when their

employment has been terminated.146 The impact of ESTA is that if the person sought

to be evicted falls within the definition of “occupier”, the statutory eviction procedures

under ESTA must be followed. This is to ensure that farmworkers are not evicted

from the farm without proper procedural protection.147 Therefore, even if the farm

owner wants to exercise his right to exclude by evicting farmworkers, he is obliged to

follow the eviction procedure, which can be expensive and time consuming and

143


144 Dhliwayo P Tenure security in relation to farmland (2012) unpublished LLM thesis Stellenbosch

University for a detailed discussion of farm workers’ tenure security.


th ed

2006) 663.

146 Wegerif M, Russel B & Grundling I Still searching for security: The reality of farm dwellers evictions

in South Africa (2005) 85.

147 Sections 8-13 of the Extension of Security of Tenure Act 62 of 1997 set out a long and complex

procedural process that should be followed by farm owners to effect legal evictions from farms. See

also Pienaar JM Land reform (2014) 400-406 for a detailed discussion on the regulation of eviction.


144

might delay the eviction process.148 The eviction procedure entitles the farmworkers

to have access to the farm for housing purposes while waiting for the eviction to be

finalised. In other words, the anti-eviction measures protects farmworkers and also

enable them to continue in occupation until the occupancy rights are terminated on

lawful grounds in accordance with the requirements of ESTA.149 This limits the extent

to which a farm owner can exert control over farmworkers who live on his land,

thereby limiting the right to exclude.

Apart from regulatory eviction procedures, the limitation on the landowner’s

right to exclude is demonstrated by decisions concerning limited use of and access

to agricultural land. For example, apart from stabilising their lawful occupation of the

land, ESTA also provides other access rights to non-owners, based on limited

permission to use the land, that prevent the landowner from exercising his right to

exclude, for example in the context of burial rights.150 In the case of Nhlabathi and

Others v Fick151 the landowner argued that section 6(2)(dA) of ESTA was

unconstitutional because it infringes upon section 25 of the Constitution.152 ESTA

was amended in 2001 to include burial rights in favour of occupiers of agricultural

148

Van der Merwe CG (with Pope A) “Ownership” in Du Bois F (ed) Wille’s Principles of South African

law (9th ed 2007) 469-556 549.


150 In this regard, see section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997, which

provides that a farm labourer can bury his or her deceased family member, who at the time of death

was residing on the land on which the occupier is residing, in accordance with their religion or cultural

beliefs, provided an established practice in respect of the land exist in terms of which farm labourers

were in the past allowed to bury their deceased family members on the farm in line with their belief or

custom.

151 2003 (7) BCLR 806 (LCC) para 20. See also Van der Walt AJ Constitutional property law (3

rd ed

2011) 285-286, 297-299.

152 The burial right constitutes a deprivation of some incidents of ownership, including the landowner’s

right to exclude.


145

land.153 Prior to the amendment, the courts refused to grant burial rights because

they were different in nature to other rights in ESTA, which did not impact on the land

physically.154 As a result of the amendment, occupiers of private farmland were

granted the right to bury their deceased family members on the farm where they

lived and worked, even without prior permission and against the will of the

landowner, provided they meet the requirements stipulated in ESTA.155 The burial

right should be in accordance with religion or cultural beliefs if an established

practice existed in respect of land.156 An “established practice” denotes a practice in

terms of which the owners or persons in charge routinely gave permission to people

residing on land to bury deceased family members on that land in accordance with

their religion or cultural belief.157 ESTA now places the landowner in a situation

where he is not able to refuse burial on his land as long as an established practice

exists.158 To this end, burial rights impose a permanent physical intrusion on the

153

Section 6(2) of ESTA was amended to include burial rights in section 6(2)(dA) and 6(5).

154 Serole and Another v Pienaar 2000 (1) SA 328 (LCC) para 16; Nkosi and Another v Bührmann

2002 (1) SA 372 (SCA) para 51, which concerned the refusal of the farm owner to grant occupiers’

burial rights. See also Mahomed A Understanding land tenure law: Commentary and legislation

(2009) 55-58. Pienaar JM Land reform (2014) 418-419 explains that burial rights were deemed to be

different because they constituted a servitude, embodying a limited real right, which would have an

impact on the landowner’s ownership rights and would also impact on the land permanently.

155 Pienaar JM Land reform (2014) 418-423.

156 Dlamini and Another v Joosten and Others 2006 (3) SA 342 (SCA) para 1. See also Pienaar J &

Mostert H “The balance between burial rights and landownership in South Africa: Issues of content,

nature and constitutionality” (2005) 122 South African Law Journal 633-630 635; Pienaar JM Land

reform (2014) 419.

157 Section 1(1) of the Extension of Security of Tenure Act 62 of 1997. In Nhlabathi and Others v Fick

[2003] All SA 323 (LCC) para 36-37 the court held that an established practice does not relate to a

particular family but that the practice had to have been established in respect of land. See also

Pienaar J & Mostert H “The balance between burial rights and landownership in South Africa: Issues

of content, nature and constitutionality” (2005) 122 South African Law Journal 633-630 653; Pienaar

JM Land reform (2014) 419.

158 Section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997.


146

land. Some of the case law that dealt with the occupiers’ burial rights emphasised

that granting such a right to occupiers amounts to an inroad into the landowner’s

entitlements.159 The right to exclude is statutorily limited by burial rights provided

under ESTA to secure the religious and cultural rights in line with the constitutional

obligation. The Nhlabathi decision therefore shows how legislature can limit property

rights for purposes of promoting constitutionally recognised non-property rights.160

3 3 2 Legislation not directly giving effect to a non-property constitutional right

In some instances, the right to exclude is subject to statutory qualification that

derives from legislation not directly aimed at giving effect to non-property

constitutional rights. The legislation in this category allow non-owners to have access

to or use privately owned land without the landowner’s permission or consent. For

this discussion it is necessary to consider examples from foreign law together with

South African examples. English, Welsh and Scots law provide, in different forms, for

a statutory right to roam161 on privately owned land designated for recreational

159

Serole and Another v Pienaar 2000 (1) SA 328 (LCC); Nkosi and Another v Bührmann 2002 (1) SA

372 (SCA). See also Pienaar J & Mostert H “The balance between burial rights and landownership in

South Africa: Issues of content, nature and constitutionality” (2005) 122 South African Law Journal

633-630; Pienaar JM Land reform (2014) 418-422.

160 Van der Walt AJ “The modest systemic status of property rights” (2014) 1 Journal for Law,

Property and Society 15-106 74.

161 A right to roam mainly refers to the right to wander across open land that is privately owned.

Although a detailed analysis of Scandinavian public access rights falls outside the scope of this study,

it is interesting to note that this right to roam has been in existence for a long period of time in

Scandinavian countries such as Sweden, Norway, Finland and Denmark. For example in Swedish law

the “allemansratt” meaning “everyman’s right” gives anyone in Sweden, whether local or a tourist, the

right to roam almost everywhere they would like. See Anonymous “The right of public access”

available online at <http://www.naturvardsverket.se/en/Enjoying-nature/The-Right-of-Public-Access/>

(accessed on 04-06-2014). Katz L “Exclusion and exclusivity in property law” (2008) 58 University of

Toronto Law Journal 275-315 298-299 asserts that the principle of “allemansratt” ensures that anyone


147

purposes.162 These statutes were enacted specifically to grant access rights to non-

owners and other neighbouring owners, to pass over or to be on privately owned

land. The right to roam is not recognised in South African law and therefore it is

necessary to consider other jurisdictions to identify examples of access rights that

originate from and are protected by law. The discussion on legislation here is not an

attempt to introduce new access rights but is to outline and explain instances in

which statutory access rights place limitations on the right to exclude.

(a) A landowner’s right to exclude non-owners from his land is limited by a broad

category of statutory provisions that grant regulatory access to state authorities on

private land. These include but are not limited to search, seizure and forfeiture

powers. For example, the Income Tax Act163 and the Value Added Tax Act164 provide

that a judge may issue a warrant authorising an officer to enter and search any

premises.165 The search is to be conducted, on someone’s premises, without prior

can use rural land for recreational purposes, so long as these uses are not inconsistent with the uses

to which the owner has decided to put the land. Robertson HG “Public access to private land for

walking: Environmental and individual responsibility as rationale for limiting the right to exclude”

(2011) 23 Georgetown International Environmental Law Review 211-262 215-240 notes that

Scandinavian countries have a historic and cultural commitment of public rights of access to private

land (countryside) for all people, for purposes of open-air recreation. Lovett JA “Progressive property

in action: The Land Reform (Scotland) Act 2003” (2011) 89 Nebraska Law Review 739-818 776 (with

reference to footnote 203) states that several of the core principles in the Land Reform (Scotland) Act

2003 already exist in most of the Scandinavian countries.

162 The Countryside and Rights of Way Act 2000 (CROW Act) and the Land Reform (Scotland) Act

2003 (LRSA), respectively.

163 Section 74D of the Income Tax Act 58 of 1962.

164 Section 57D of the Value Added Tax Act 89 of 1991.

165 See section 57D(1)(a)(i) of the Value Added Tax Act 89 of 1991; Section 74D(1)(a)(i) of the

Income Tax Act 58 of 1962. Deutschmann NO and Others v Commissioner for the South African

Revenue Service; Shelton v Commissioner for the South African Revenue Service 2000 (2) SA 106


148

notice and at any time to obtain any information, documents or things as evidence of

non-compliance or offence committed in relation to which the warrant is being

issued.166 The landowner does not have the power to deny an officer who is acting

on this kind of authority access to his premises. In such instances, the landowner

cannot exercise his right to exclude.

Furthermore, the Investigation of Serious Economic Offences Act167 authorises

the Director to enter any premises for the purposes of an inquiry at any reasonable

time and without prior notice.168 In terms of this provision the landowner’s consent is

not required for the Director to have access to his premises. This implies that the

landowner cannot exclude anyone acting in terms of this provision. Limitations of the

right to exclude are also authorised by the Criminal Procedure Act,169 which

authorise entry upon premises to obtain any article required in evidence; to any

person who is lawfully in charge of any premises and reasonably suspects that stock

or produce has been placed on the premises; and to allow the police to prevent any

offence in connection with state security, respectively.170

(E) 113 was decided on the basis of these two sections. See also Van der Walt AJ Constitutional

property law (3rd

ed 2011) 313-314.

166 See section 57D(1)(a)(ii) of the Value Added Tax Act 89 of 1991; Section 74D(1)(a)(ii) of the

Income Tax Act 58 of 1962.

167 Section 6 of the Investigation of Serious Economic Offences Act 117 of 1991.

168 Park-Ross and Another v The Director, Office for Serious Economic Offences 1995 (2) SA 148 (C)

167. See also Van der Walt AJ Constitutional property law (3rd

ed 2011) 233.

169 Sections 21, 24 and 25 of the Criminal Procedure Act 51 of 1977.

170 Minister of Safety and Security and Another v Van der Merwe and Others [2011] 1 All SA 260

(SCA) para 12 states that the authority that is conferred by a warrant to conduct a search and then to

seize what is found, makes material inroads upon rights that have always been protected at common

law, such as the rights to privacy, property and personal integrity. See also Polonyfis v Minister of

Police and Others (64/10) [2011] ZASCA 26 (18 March 2011) para 9.


149

Those provisions in the Prevention of Organised Crime Act171 that authorise

criminal and civil forfeiture of property that has been used to commit an offence172

also impose limitations on the right to exclude. Forfeiture concerns state action which

results in the loss of property to the state, without the consent or co-operation of the

owner, because the property was involved in some way in committing a crime.173

Civil forfeiture is enforced (without criminal prosecution or conviction) against

innocent third parties who hold or own property, regardless of their involvement or

knowledge of the crime.174 Both civil and criminal forfeiture constitute a significant

limitation of property rights, in that the property, as a result of the forfeiture order, is

forfeited to the state.175

(b) The right to exclude is also limited by statutory provisions that regulate the use of

land in the area of private law. The Sectional Titles Act176 allows a private body (the

body corporate of a sectional title scheme) to impose rules that limit sectional title

owners’ property rights. The sectional title owners’ right to exclude is subject to and

limited by the regulations and rules in the Act. In terms of the Act177 the members of

a sectional title community are bound by the registered rules of the sectional title

171

See chapter 6 of the Prevention of Organised Crime Act 121 of 1998.

172 On the distinction between civil and criminal forfeiture, see Van der Walt AJ Constitutional property

law (3rd

ed 2011) 319-320.

173 Van der Walt AJ “Civil forfeiture of instrumentalities and proceeds of crime and the constitutional

property clause” (2000) 16 South African Journal on Human Rights 1-45 2.


rd ed 2011) 319-320.


rd ed 2011) 322. See also section 56 of the

Prevention of Organised Crime Act 121 of 1998.

176 Act 95 of 1986.

177 Section 35 of the Sectional Titles Act 95 of 1986.


150

scheme. According to Pienaar,178 these rules are not based on contract but are

prescribed by legislation. In other words, the rules are enforced on members against

their will and without their consent. Some of the rules limit a sectional title owner

from exercising his right to exclude. For example, a sectional title owner has a duty

to permit any person authorised in writing by the body corporate to enter his section

or exclusive use area, at all reasonable hours and on notice, for purposes of

inspecting it, maintaining, repairing or renewing pipes, wires, cables and ducts in the

section.179

In addition, the Act provides for several implied servitudes in favour of and

against each section. These servitudes include a reciprocal servitude for the

passage or provision of certain services through pipes, wires, cables and ducts.180

This implied servitude confers on the body corporate the right to have access to

each section and the exclusive use areas, to effect maintenance, repairs or renewal

of any part of the building or any pipes, wires, cables or ducts in the building.181

Pienaar argues that the right of access granted to outsiders in terms of the statutory

provision is a deviation from the common law principle that an owner has exclusive

right to use and enjoy his property, which includes his right to privacy and control of

access to his property.182 The limitation on the right to exclude arises as a result of

the implied servitude, created against the will of a sectional title owner in favour of

each section in terms of legislation.

178


179 Section 44(1)(a) of the Sectional Titles Act 95 of 1986. See also section 13(1)(a) of the Sectional

Titles Scheme Management Act 8 of 2011.

180 See section 28(1)(a)(ii) in favour of a section and section 28(1)(b)(ii) against each section. See

also Pienaar GJ Sectional titles and other fragmented property schemes (2010) 239-240.

181 Section 28(2)(b) and section 44 (1)(a) of the Sectional Titles Act 95 of 1986.

182 Pienaar GJ Sectional titles and other fragmented property schemes (2010) 235 (with reference to

footnote 7).


151

(c) A limitation on the right to exclude also appears in legislation governing and

regulating access rights in English law. A first category refers to legislation granting

access rights in the form of a right to roam to non-owners (the public). The statutory

right to roam granted to non-owners is recognised as a limitation of the private

landowner’s right to exclude.183 According to Anderson,184 the right to roam refers to

broad access rights that allow the public to wander freely over private meadows or

other uncultivated private lands. The right to roam in England and Wales185 gives

legislative force to an entitlement that was not recognised under common law,

namely self-determining pedestrian access to privately owned open land.186 The

relevant legislation was enacted to meet the demand for legally recognised access

rights that had been lost as a result of the enclosure movement.187 The CROW Act

183

Van der Walt AJ Property in the margins (2009) 193-195; Robertson HG “Public access to private

land for walking: Environmental and individual responsibility as rationale for limiting the right to

exclude” (2011) 23 Georgetown International Environmental Law Review 211-262 213.

184 Anderson JL “Britain’s right to roam: Redefining the landowner’s bundle of sticks” (2007) 19

Georgetown International Environmental Law Review 375-436 380.

185 The right is regulated by the Countryside and Rights of Way Act 2000 (CROW Act).

186 Gray K & Gray SF Land law (6

th ed 2009) 533; Gray K & Gray SF Elements of land law (5

th ed

2009) 1372-1376. See also Gray K “Pedestrian democracy and the geography of hope” (2010) 1

Journal of Human Rights and Environment 45-65 49-52; Lovett JA “Progressive property in action:

The Land Reform (Scotland) Act 2003” (2011) 89 Nebraska Law Review 739-818 766; Anderson JL

“Countryside access and environmental protection: An American view of Britain’s right to roam”

(2007) 9 Environmental Law Review 241-259; Anderson JL “Britain’s right to roam: Redefining the

landowner’s bundle of sticks” (2007) 19 Georgetown International Environmental Law Review 375-

436.

187 Gray K “Pedestrian democracy and the geography of hope” (2010) 1 Journal of Human Rights and

Environment 45-65 49 notes that there was once a “golden age” that recognised some generalised

access rights to privately held land. Furthermore, in medieval times, some form of a right to roam over

open uncultivated land was acceptable. However, any entitlement of this kind of access was gradually

extinguished from the 16th century onwards by the enclosure movement. See also Anderson JL

“Britain’s right to roam: Redefining the landowner’s bundle of sticks” (2007) 19 Georgetown

International Environmental Law Review 375-436 383-389, who discusses the impact of enclosure on

access rights and indicates failure of the common law to recognise a more general right to roam. See


152

grants any person the right to enter and remain on any land for the purposes of

open-air recreation, but within strict limitations.188 Notably, the right of access

provided by the Act is for open-air recreation. The Act limits the reach of access

rights to five specific categories of land, namely mapped open country; mountain

land; coastal land; registered common land; and dedicated land, which is designated

specifically for access.189 Access rights are limited to access on foot.190 The Act has

increased non-owners’ access to privately owned land and in doing so statutorily

limited landowners’ right to exclude non-owners from their land. Furthermore, the Act

changed the law’s approach to the rights of landowners and in particular landowners’

right to exclude.191 This change came as a result of the guarantee of public access to

designated private lands prescribed by the Act.

A right to roam is also recognised in Scotland. Scots law provides far-reaching

access rights to non-owners192 and creates access rights that are much wider in

scope than those established by the CROW Act in respect of general access rights

also Lovett JA “Progressive property in action: The Land Reform (Scotland) Act 2003” (2011) 89

Nebraska Law Review 739-818 767-770; Sawers B “The right to exclude from unimproved land”

(2011) 83 Temple Law Review 665-696 684.

188 Section 2 of the Countryside and Rights of Way Act 2000. See also Gray K & Gray SF Land law

(6th ed 2009) 533.

189 Section 1(1)-(2), 16 of the Countryside and Rights of Way Act 2000.

190 Section 2(1)(b) of the Countryside and Rights of Way Act 2000.

191 Robertson HG “Public access to private land for walking: Environmental and individual

responsibility as rationale for limiting the right to exclude” (2011) 23 Georgetown International

Environmental Law Review 211-262 213, citing R (Ashbrook) v East Sussex County Council [2002]

EWCA Civ 1701 (20 November 2002) para 48, where one judge stated that the rights conferred by

the CROW Act wrought a sea change in the law’s approach to the rights of members of the public to

reasonable enjoyment of the countryside, even when the countryside is privately owned.

192 The rights are enforced through the Land Reform (Scotland) Act 2003 (LRSA). See Carey Miller

DL “Public access to private land in Scotland” (2012) 15 Potchefstroom Electronic Law Journal 119-

147; Gray K & Gray SF Land law (6th ed 2009) 534; Van der Walt AJ Property in the margins (2009)

194.


153

to privately owned land. Prior to the enactment of the LRSA, Scots common law

granted members of the public limited access rights over private land in the form of

public rights of way.193 These common law rights of way were difficult to establish at

Scots common law because their utility and occurrence were always circumscribed

by several doctrinal considerations.194 This is one aspect that led Scots law to

introduce a broad statutory right of responsible access. The LRSA was enacted to

provide reasonable access rights to land for recreation and passage. The LRSA

establishes and confers on everyone statutory access rights over, on and below the

surface of the land, for some limited time and for specified purposes.195 Importantly,

these access rights are subject to manner restrictions in that the exercise of the

access right is presumed to be responsible if it does not cause unreasonable

interference with the rights of others.196 The access right may not be exercised with

the use of a car or motorbike.197 These access rights include the right to be on land,

that is, to go onto and remain on any part of the land and a right to cross land.198 The

right to be on land extends to certain purposes only. The first is for recreational

193

Lovett JA “The right to exclude meets the right of responsible access: Scotland’s bold experiment

in public access legislation” (2012) 26 Probate and Property 52-56 53.

194 Lovett JA “The right to exclude meets the right of responsible access: Scotland’s bold experiment

in public access legislation” (2012) 26 Probate and Property 52-56 53; Lovett JA “Progressive

property in action: The Land Reform (Scotland) Act 2003” (2011) 89 Nebraska Law Review 739-818

753-759. See also Gray K “Pedestrian democracy and the geography of hope” (2010) 1 Journal of

Human Rights and Environment 45-65 50, citing Earl of Breadalbane v Livingston (1790) M 4999, as

affirmed (1791) 3 Pat 221; Dyce v Lady James Hay (1852) 1 Macq 305 312-315, which highlights that

Scots law did not traditionally recognise unconsented rights of recreational access to another’s land.

195 See the Preamble and Sections 1(1)-(7) of the Land Reform (Scotland) Act 2003.

196 Guthrie T “Access rights” in Rennie R (ed) The promised land: Property law reform (2008) 125-146

134, 137. See also section 2(2) of the Land Reform (Scotland) Act 2003.

197 Gretton GL & Steven AJM Property, trusts and succession (2

nd ed 2013) 241-256 242-243. See

also Combe MM “Access to land and landownership” (2010) 14 Edinburgh Law Review 106-113 106.

198 Section 1 of the Land Reform (Scotland) Act 2003.


154

purposes.199 Although recreational purposes is not further defined in the LRSA, the

Scottish Outdoor Access Code200 that was introduced under the legislation gives

examples such as sightseeing; family and social activities, such as walks, picnics

and kite flying; horse riding; mountaineering and wild camping as recreational

activities. The second specified purpose is carrying on a relevant educational

activity. This is defined as being concerned with furthering understanding of the

natural or cultural heritage.201 According to the Scottish Outdoor Access Code, the

LRSA allows access rights to be exercised by a leader and his students on a trip to

learn about wildlife, landscapes or geological features.202 The third purpose extends

to activities carried out commercially or for profit, that is, activities carried out by the

general public for recreational purposes, for educational activities or for crossing

land.203

The right to cross land is not restricted in terms of purpose.204 The right to cross

land is defined as going on to land, passing over it, and then leaving it for the

purpose of getting from one place outside the land to another place.205 This access

199

Section 1(3) of the Land Reform (Scotland) Act 2003.

200 Scottish Natural Heritage Scottish Outdoor Access Code (2005) para 2.7 available online at

<http://www.outdooraccess-scotland.com/> (accessed on 05-05-2014). See also Tuley v Highland

Council [2009] CSIH 31A; 2009 S.L.T 616 concerning an attempt to exclude one of the recreational

activities, namely horse riding from a particular path.

201 Sections 1(3)(b), (5)(a)-(b) of the Land Reform (Scotland) Act 2003.


<http://www.outdooraccess-scotland.com/> (accessed on 05-05-2014).


<http://www.outdooraccess-scotland.com/> (accessed on 05-05-2014). See also Lovett JA

“Progressive property in action: The Land Reform (Scotland) Act 2003” (2011) 89 Nebraska Law

Review 739-818 786.

204 Guthrie T “Access rights” in Rennie R (ed) The promised land: Property law reform (2008) 125-146

133.

205 Sections 1(2)(b), (4)(b) of the Land Reform (Scotland) Act 2003.


155

right could encompass activities like taking a short cut across someone’s land to get

to work, school or a bus stop.206 Basically, the access right conferred by the LRSA

enables non-owners to go into, pass over and remain on privately owned land for

recreational, educational or commercial purposes, without a landowner’s prior

consent.207 The strong presumption in favour of access rights introduced by the

LRSA is startling, given the exclusionary powers held by landowners under the

common law. The LRSA also imposes a duty on the landowners to use and manage

their land in a responsible way.208 This provision invokes the presumption of

responsible land management, which includes not interfering with the access rights

of any person exercising or seeking to exercise the access rights.209

The LRSA prohibits landowners from taking action aimed at preventing or

deterring the exercise of access rights. This means that landowners are prevented

from exercising their right to exclude non-owners from their land. The local authority

has a wide-ranging regulatory role under the Act to ensure that the public has

reasonable access to land.210 Arguably, the LRSA redefines the right to exclude in

Scots law by allowing a far broader range of access activities on privately owned

206

Lovett JA “Progressive property in action: The Land Reform (Scotland) Act 2003” (2011) 89

Nebraska Law Review 739-818 786; Guthrie T “Access rights” in Rennie R (ed) The promised land:

Property law reform (2008) 125-146 133.

207 Combe MM “Access rights: A letter from America” (2012) 16 Edinburgh Law Review 110-113 110.

208 Section 3(1)-(2) of the Land Reform (Scotland) Act 2003.

209 Section 11 of the Land Reform (Scotland) Act 2003. See also Lovett JA “Progressive property in

action: The Land Reform (Scotland) Act 2003” (2011) 89 Nebraska Law Review 739-818 789; Tuley v

Highland Council [2009] CSIH 31A; (2009) SLT 616 619-620.

210 Section 13 of the Land Reform (Scotland) Act 2003.


156

land. As Lovett puts it, the presumptive power to exclude is replaced by the

presumption in favour of responsible statutory access rights.211

The right to roam in England and Wales and in Scotland is a recent statutory

innovation, which shows the state’s willingness to expand public access rights. The

introduction of general indefeasible public access rights under the CROW Act and

the LRSA represents a step on the road towards changing the general view that the

right to exclude is the core of property.

The public recreation aspect of access rights is also recognised in US law and

it looks similar to the Scottish and English right to roam, although it is not recognised

in legislation but in something like the public trust doctrine.212 According to the public

trust doctrine, navigable waters, tidal wetlands, beds of navigable waters, and the

wet sand portion of beaches are held by the sovereign in trust for use by the public in

connection with commerce, navigation, and fishing.213 In cases where the state

transfers such property to private owners, the property remains encumbered by the

public trust.214 The effect is that the landowner’s right to exclude the public is limited

to protect public access.

211

Lovett JA “Progressive property in action: The Land Reform (Scotland) Act 2003” (2011) 89


212 Regarding the public trust doctrine see generally Alexander GS & Peñalver EM An introduction to

property theory (2012) 134; Blumm MC “The public trust doctrine and private property: The

accommodation principle” (2010) 27 Pace Environmental Law Review 649-668; Van der Schyff E

“Unpacking the public trust doctrine: A journey into foreign territory” (2010) 13 Potchefstroom

Electronic Law Journal 122-159; Byrne PJ “The public trust doctrine, legislation and green property: A

future convergence?” (2012) 45 University of California Davis Law Review 915-930; Frank RM “The

public trust doctrine: Assessing its recent past and charting its future” (2012) 45 University of

California Davis Law Review 665-692.

213 Alexander GS & Peñalver EM An introduction to property theory (2012) 134 (with reference to

footnote 10).



157

The public trust doctrine particularly provides for public access to beaches for

recreational purposes. Public access to privately owned beaches was historically

limited,215 the public only being allowed to access land between the mean high and

low tide lines (wet-sand areas) for purposes of fishing.216 The courts have in recent

years added the aspect of recreation as one of the purposes for public access to the

beach.217 The expansion of public beach access relates to privately owned dry sand

portions of the beach via the public trust doctrine.218

More strikingly, the courts in New Jersey have resolved issues of beach access

in a way that expands public access at the expense of the landowner’s right to

exclude. In Matthews v Bay Head Improvement Association219 the court held that a

private non-profit entity, which owned or leased most of the beachfront lots in Bay

Head, did not have an unlimited right to exclude members of the public from the dry

sand portion of its beach. Furthermore, the court ruled that the public must be given

reasonable access to the foreshore (wet-sand area) and a suitable area for

recreation on the dry sand.220 This judgement came about as a result of the fact that

215

Alexander GS “Ownership and obligations: The human flourishing theory of property” (2013) 43

Hong Kong Law Journal 451-462 459.

216 Alexander GS “Ownership and obligations: The human flourishing theory of property” (2013) 43

Hong Kong Law Journal 451-462 459. See also Rose C “The comedy of the commons: Custom,

commerce and inherent public property” (1986) 53 University of Chicago Law Review 711-781 713.

217 See Alexander GS “Ownership and obligations: The human flourishing theory of property” (2013)

43 Hong Kong Law Journal 451-462 459, citing Neptune City v Borough of Avon-by-the-Sea 294 A2d

47 (NJ 1972); Thornton v Hay 462 P2d 671 (Ore 1969); Hixon v Public Service Commission 146

NW2d 577 (Wis 1966).


nd ed 2005) 86-87; Alexander GS “Ownership and obligations:

The human flourishing theory of property” (2013) 43 Hong Kong Law Journal 451-462 459.

219 471 A2d 355 (NJ 1984).

220 Matthews v Bay Head Improvement Association 471 A2d 355 (NJ 1984) 366.


158

Bay Head Improvement Association was a quasi-public entity.221 The court reasoned

that where an organisation is quasi-public, its power to exclude must be reasonably

and lawfully exercised in furtherance of the public welfare related to its public

characteristics.222 In these instances, the landowner’s property rights, particularly the

right to exclude, must give way.

In the subsequent judgement of Raleigh Avenue Beach Association v Atlantis

Beach Club223 the court expanded the scope of public access to a private beach,

ruling that the owner of the beach property had a duty to keep the dry sand area

open to the public. The court further held that a private beach club that was not a

quasi-public entity was required under the reasonable access norm established in

Matthews v Bay Head Improvement Association to provide members of the public

with reasonable access to the beach across its dry sand area.224 The Raleigh

Avenue Beach Association decision that entitles the public to have access to a

privately owned beach has a significant restrictive impact on the landowner’s right to

221

In Matthews v Bay Head Improvement Association 471 A2d 355 (NJ 1984) 358 the court stated

that the ownership, dominion and sovereignty over land covered by tidal waters, which extend to the

mean high water mark, is vested in the state in trust for the people. Furthermore, ancillary to the

public’s right to enjoy the tidal lands, the public has a right to gain access through and to use the dry

sand area not owned by a municipality but by a quasi-public body. See Singer JW Introduction to

property (2nd

ed 2005) 88; Alexander GS “The social-obligation norm in American property law” (2009)

94 Cornell Law Review 745-820 803; Alexander GS “Ownership and obligations: The human

flourishing theory of property” (2013) 43 Hong Kong Law Journal 451-462 460.

222 Matthews v Bay Head Improvement Association 471 A2d 355 (NJ 1984) 366.

223 879 A2d 112 (NJ 2005).

224 Raleigh Avenue Beach Association v Atlantis Beach Club Inc 879 A2d 125 (NJ 2005). See also

Alexander GS “The social-obligation norm in American property law” (2009) 94 Cornell Law Review

745-820 803; Alexander GS “Ownership and obligations: The human flourishing theory of property”

(2013) 43 Hong Kong Law Journal 451-462 459-460; Rosser E “An ambition and transformative

potential of progressive property” (2013) 101 California Law Review 107-172 152-153.


159

exclude.225 Although the ruling in Raleigh Avenue Beach Association preserves the

owner’s right to exclude, the decision importantly favours public access to the private

beach for recreational purposes.

In South African law, public access to the beach for recreational purposes is

regulated by legislation, which is mostly relevant to coastal zone management.226

The legal nature of the coast as public land has been recognised since Roman law,

where the sea and sea-shore were classified as res omnium communes, meaning

that the area was open to the enjoyment of all and could not be subjected to private

appropriation.227 This notion was modified in Roman-Dutch law, which classified the

sea and sea-shore as res publicae, meaning that the area was owned by the

authorities but as custodian for the use and enjoyment of the people.228

The National Environmental Management: Integrated Coastal Management Act

24 of 2008229 provides that the ownership of coastal property, which encompasses

225


Review 745-820 803 argues that Raleigh Avenue Beach Association’s symbolic impact on the right to

exclude is that it muddies the seemingly crystalline traditional rule that a private owner of the dry-sand

portion of the beach may exclude others.

226 Glazewski J Environmental law in South Africa (2

nd ed 2005) 297-301.

227 307.


nd ed 2005) 307. See also Van der Merwe CG

Sakereg (2nd

ed 1989) 32-34; South African Shore Angling Association and Another v Minister of

Environmental Affairs 2002 (5) SA 511 (SE) 11. In Consolidated Diamond Mines of South West Africa

Ltd v Administrator, South West Africa and Another 1958 (4) SA 572 (A) the court held that the public

has certain simple rights to the foreshore such as to go on it, to bath and to fish and any substantial

interference with these rights would be a wrongful act. In Anderson and Murison v Colonial

Government 1891 (8) SC 293 296 the court stated that the government is in one sense the custodian

of the sea-shore, on behalf of the public.

229 See section 11(1). The Sea-Shore Act 21 of 1935 vests ownership of the sea-shore in the State

President. The Act regulates the accessibility of the sea and sea-shore for the use and enjoyment of

the public. However, the Act is outdated and not in conformity with the National Environmental

Management Act 107 of 1998. See Couzens EWF “Sea and sea-shore” in Joubert WA & Faris JA


160

the sea-shore, vests in the citizens of the Republic and the state must hold coastal

public property in trust on behalf of the citizens of the Republic. According to the Act,

every natural person has reasonable access to coastal public property and is entitled

to use and enjoy it, provided such use does not adversely affect the rights of

members of the public to use and enjoy the coastal public property; does not hinder

the state in the performance of its duty to protect the environment and does not

cause an adverse effect.230 However, the Act does not prevent prohibitions or

restrictions on access to and use of any part of the coastal public property which is

or forms part of a protected area; to protect the environment; in the interest of the

whole community; in the interest of national security or in the national interest.231 The

Minister of Environmental Affairs and Tourism may declare any state-owned land as

coastal public property, inter alia to improve public access to the sea-shore.232 In

addition, each municipality whose area includes coastal public property must make a

by-law that designates strips of land as coastal access land to secure public access

(eds) The law of South Africa volume 24 (2

nd ed 2010) 107-200 para 141; Glazewski J Environmental

law in South Africa (2nd

ed 2005) 307, 309. Kidd M Environmental law (2nd

ed 2011) 229 argues that

the coastal zone is ecologically sensitive and therefore ought to be subject to special land-use

controls. The National Environmental Management: Integrated Coastal Management Act 24 of 2008

now regulates the coastal zone and the Sea-Shore Act only applies to provinces to which it has been

assigned.

230 See section 13(1)(a)-(b) of the National Environmental Management: Integrated Coastal

Management Act 24 of 2008.

231 See section 13(2) of the National Environmental Management: Integrated Coastal Management

Act 24 of 2008.

232 See sections 7, 8(1)(a) of the National Environmental Management: Integrated Coastal

Management Act 24 of 2008 for the composition and extension of coastal public property. See also

Couzens EWF “Sea and sea-shore” in Joubert WA & Faris JA (eds) The law of South Africa volume

24 (2nd

ed 2010) 107-200 para 151.


161

to that land.233 The coastal access land is subject to a public access servitude in

favour of the local municipality where the land is situated and in terms of which

members of the public may use that land to gain access to coastal public property.234

The question that arises when dealing with recreational activities relates to the

public’s legal right of access to the sea-shore over private property.235 In principle,

the public has access rights to the sea-shore but there are instances where the

public is denied access by private land owners whose land abuts the high-water

mark and who assert private property rights to prevent people from traversing their

land.236 The provision of coastal access land will undoubtedly affect private land and

limit the landowner’s right to exclude. The Act prescribes factors that the

municipalities have to take into account when designating the access areas,

including the importance of not restricting the rights of landowners unreasonably.237

Accordingly, the legislation provides the public with reasonable access to the sea-

shore and it also regulates where the public can have access, what kind of access is

required and by whom.

(d) A second category of legislation recognises access rights to land when a

landowner who wants to carry out work on his property requires him or his workers to

gain access to a neighbour’s land for that purpose. In English common law, anyone

233

See section 18(1) of the National Environmental Management: Integrated Coastal Management

Act 24 of 2008.

234 See section 18(2) of the National Environmental Management: Integrated Coastal Management

Act 24 of 2008.


nd ed 2005) 301.

236 316.

237 Section 29 of the National Environmental Management: Integrated Coastal Management Act 24 of

2008. See also Kidd M Environmental law (2nd

ed 2011) 231.


162

who wished to enter a neighbour’s land for the purpose of carrying out work on his

land required the consent of the neighbouring owner.238 This position has been

significantly changed by legislation that grants access to neighbouring landowners.

The Access to Neighbouring Land Act 1992 (UK) empowers the relevant courts to

grant the owner of dominant land access to the servient land for the purpose of

carrying out work, without the consent of the owner of the servient land.239 The

access order granted by the court permits the exercise of access rights only for the

purpose of facilitating certain types of work on the dominant land for a limited period

of time.240 The Act only allows compulsory access in respect of work that is

reasonably necessary for the preservation of the dominant land.241 For example, the

court may grant an access order that allows the owner of the dominant land to carry

out works, which include the maintenance, repair or renewal of any part of a building

or other structure that is situated on the dominant land, to preserve it.242

238

Grattan S “Proprietarian conceptions of statutory access rights” in Cooke E (ed) Modern studies in

property law volume 2 (2003) 353-374 353. See also Entick v Carrington (1765) 19 Howell’s State

Trials 1029, 1066 95 ER 807, in which the court ruled that the law holds the property of every man so

sacred that no man can set his foot in his neighbour’s house without his permission.

239 Section 3(1), (2) and (7) of the Access to Neighbouring Land Act 1992 (UK). See also Grattan S

“Proprietarian conceptions of statutory access rights” in Cooke E (ed) Modern studies in property law

volume 2 (2003) 353-374 353; Gray K & Gray SF “The rhetoric of realty” in Getzler J (ed)

Rationalizing property, equity and trusts: Essays in honour of Edward Burn (2003) 204-280 260.

240 See section 2(1) of the Access to Neighbouring Land Act 1992 (UK); Grattan S “Proprietarian

conceptions of statutory access rights” in Cooke E (ed) Modern studies in property law volume 2

(2003) 353-374 354.

241 Sections 3(1), (2), (7) of the Access to Neighbouring Land Act 1992 (UK) provide that an access

order authorises the applicant to bring onto and leave on the servient land such materials, plant and

equipment as are reasonably necessary for carrying out the work. The owner of the servient land is

required to allow the applicant access to the servient land in accordance with the court order, see

sections 3(1) and 4(1) of the Access to Neighbouring Land Act 1992 (UK).

242 See section 1(4)(a) of the Access to Neighbouring Land Act 1992 (UK).


163

Furthermore, the Party Wall etc Act 1996 (UK) confers upon a building owner,

his servants, agents, workmen and surveyors the right to enter and remain on land,

during usual working hours, for purposes of executing works in pursuance of the

Act.243 The Act relates to works which a neighbouring landowner may desire to carry

out where an adjoining wall (party wall) with a neighbour’s property might be

affected. For example, if a landowner wants to alter the structure of the adjoining

wall, he is required in terms of the Act to serve a notice to an adjoining landowner.244

If the adjoining landowner does not consent, the building landowner is allowed by the

Act to build the wall but only at his own expense.245 The general effect of the

legislation permitting access rights for work purposes in English law is that

landowners are required to allow other people (workers or owners of neighbouring

land) onto their private land for reasons specified in the statutes. This imposes a

limitation on their right to exclude.

3 4 Limitations imposed by common law

Sometimes an efficient exploitation of one’s land requires that a landowner in one

way or another be allowed to have access to his neighbour’s land in a situation

where it is for some reason impossible to get permission or consent. This creates a

conflict of interests between the affected landowner who might want to exclude

others from engaging in any activity on his land and the neighbouring landowner who

might want access to the land in question for specific purposes. This section focuses

243

Sections 1(4)-(7), 2(1)-(2) of the Party Wall etc Act 1996 (UK) provide certain rights to a building

owner, in the absence of a court order and without the adjoining landowner’s consent, subject only to

the giving of notice. In this regard see Gray K & Gray SF “The rhetoric of realty” in Getzler J (ed)

Rationalizing property, equity and trusts: Essays in honour of Edward Burn (2003) 204-280 260.

244 See section 1(2) of the Party Wall etc Act 1996 (UK).

245 See Section 1(4) of the Party Wall etc Act 1996 (UK).


164

on two examples. The first is the right of way of necessity, which is not dependent on

the consent of the affected owner but is acquired by way of a court order.246 A right

of way of necessity constitutes a limitation on the ownership of neighbouring land.

The second example involves encroachment, when a neighbour encroaches on

another’s land without his consent and the court orders that the encroachment be left

in place, sometimes against payment of compensation.247 Both examples illustrate

instances where common law principles limit a landowner’s right to exclude by

granting an access right to a non-owner without the landowner’s consent.

The Roman-Dutch principles regarding the way of necessity are still applicable

in South African law.248 A right of way of necessity is a right that an owner of

inaccessible property has, in the absence of a consensual right of servitude, to pass

over the property of adjoining owners to the nearest public road.249 A way of

246

For a comprehensive discussion on the right of way of necessity see Raphulu TN Right of way of

necessity: A constitutional analysis (2013) unpublished LLM thesis Stellenbosch University; Van der

Walt AJ & Raphulu TN “The right of way of necessity: A constitutional analysis” (2014) 77 Tydskrif vir

Hedendaagse Romeins-Hollandse Reg 468-484. See also Van der Merwe CG “The Louisiana right to

forced passage compared with the South African way of necessity” (1999) 73 Tulane Law Review

1363-1413 1365.

247 The discussion on encroachments does not include a historical analysis. For a detailed discussion

on encroachments see Van der Walt AJ The law of neighbours (2010) 132-203; Temmers Z Building

encroachments and compulsory transfer of ownership (2010) unpublished LLD dissertation

Stellenbosch University.

248 A historical analysis is not included in this discussion. See Raphulu TN Right of way of necessity:

A constitutional analysis (2013) unpublished LLM thesis Stellenbosch University Chapter 2 for a

detailed discussion on the right of way of necessity and its origins. Van der Merwe CG “The Louisiana

right to forced passage compared with the South African way of necessity” (1999) 73 Tulane Law

Review 1363-1413 1366-1367 mentions that earlier Roman law also recognised the right of way of

necessity for the public over private property if, for example, via publica became impassable on

account of flooding or in cases where an enclosed plot of land had the potential of remaining

undeveloped. See also Southwood MD The compulsory acquisition of rights (2000) 95.

249 Carter v Driemeyer and Another (1913) 34 NPD 1 3. See also Van der Walt AJ “Sharing

servitudes” 2016 (Forthcoming) 1-77 20.


165

necessity is classified as a praedial servitude.250 A praedial servitude constitutes a

burden imposed on one piece of land (servient tenement) in favour of another piece

of land (dominant tenement).251 If it is for some reason impossible to reach

agreement between the landowners to create or establish a right of way for the

landlocked property to gain access to the public road, the courts can grant a

servitude of way of necessity over a specified servient tenement and along a

specified route.252

250

Southwood MD The compulsory acquisition of rights (2000) 96. There are two types of way of

necessity recognised in South African law, namely a permanent way of necessity (jus viae plenum)

and one granted on sufferance (jus viae precario). The main difference between these two types of

way of necessity is that reasonable compensation is required to be paid for a permanent right of way

and no compensation is required if a way of necessity is on sufferance because the landowner grants

his permission for the use of the right of way, mostly in an emergency only. See Van der Merwe CG

“The Louisiana right to forced passage compared with the South African way of necessity” (1999) 73

Tulane Law Review 1363-1413 1375-1376; Southwood MD The compulsory acquisition of rights

(2000) 102, 110-111; Badenhorst PJ, Pienaar JM & Mostert H Silberberg & Schoeman’s The law of

property (5th ed 2006) 328-330. Since this study mainly focuses on instances in which access rights to

privately owned land are granted without the landowner’s permission, it is not necessary to consider

the way of necessity on sufferance. The focus is on the permanent way of necessity. The South

African position that compensation is required for a permanent right of way of necessity was

established in Wilhelm v Norton 1935 EDL 143 176 and confirmed in Van Rensburg v Coetzee 1979

(4) SA 655 (A) 676A-D. See also Van der Walt AJ “Sharing servitudes” 2016 (Forthcoming) 1-77 24.


th ed

2006) 323. See also Southwood MD The compulsory acquisition of rights (2000) 105.

252 This means that the right of way of necessity is established by a court order in the absence of

consent from the servient tenement owner. In this regard see Van der Merwe CG “Servitudes and

other real rights” in Du Bois F (ed) Wille’s Principles of South African law (9th ed 2007) 591-629 598-

599; Badenhorst PJ, Pienaar JM & Mostert H Silberberg & Schoeman’s The law of property (5th ed

2006) 328-330; Van der Merwe CG & De Waal MJ “Servitudes” in Joubert WA & Faris JA (eds) The

law of South Africa volume 24 (2nd

ed 2010) para 560; Van der Walt AJ The law of neighbours (2010)

192. Van der Merwe CG “The Louisiana right to forced passage compared with the South African way

of necessity” (1999) 73 Tulane Law Review 1363-1413 1375. At 1372 Van der Merwe explains that a

right of way of necessity is established once the exact location of the right is fixed. See also

Southwood MD The compulsory acquisition of rights (2000) 95, who states that the right of way of

necessity is recognised by law in certain circumstances, namely when the owner (in most cases a


166

South African law does not allow a person to claim a way of necessity if he

himself has created the situation of necessity.253 In Van Rensburg v Coetzee254 the

court held that a claim for a right of way of necessity arises when a piece of land is

geographically isolated and has no access, or if access is available but inadequate

with the effect that its owner “has no reasonably sufficient access to the public road

for himself and his servants to enable him, if he is a farmer, to carry on his farming

operations”.255 Apart from agricultural reasons, access is also granted to

accommodate the needs of landlocked residential and commercial property.256

A permanent right of way affords the dominant tenement the use and

enjoyment of a full right of way, on a continuous basis, over the servient land.257 The

content of a way of necessity is determined with reference to the width of the road,

the frequency of use, and the type of traffic that will make use of the road,258 based

servient owner) refuses to allow the owner of the other land (dominant owner) a right of way over his

land.

253 Van der Merwe CG “The Louisiana right to forced passage compared with the South African way

of necessity” (1999) 73 Tulane Law Review 1363-1413 1392; Van der Merwe CG & De Waal MJ

“Servitudes” in Joubert WA & Faris JA (eds) The law of South Africa volume 24 (2nd

ed 2010) 455-510

para 561; Badenhorst PJ, Pienaar JM & Mostert H Silberberg & Schoeman’s The law of property (5th

ed 2006) 329. See also Bekker v Van Wyk 1956 (3) SA 13 (T) 14.

254 Van Rensburg v Coetzee 1979 (2) SA 655 (A).

255 Van Rensburg v Coetzee 1979 (2) SA 655 (A) 671A-C, citing Lentz v Mullin 1921 EDL 268 270

and the judgment of the court a quo Van Rensburg v Coetzee 1977 (3) SA 130 (T) 134C. See also

Southwood MD The compulsory acquisition of rights (2000) 100.


of necessity” (1999) 73 Tulane Law Review 1363-1413 1412-1413.

257 Southwood MD The compulsory acquisition of rights (2000) 102.


of necessity” (1999) 73 Tulane Law Review 1363-1413 1390, citing SA Yster en Staal Industriële

Korporasie Bpk v Van der Merwe 1984 (3) SA 706 (A).


167

on the economic needs of the enclosed land.259 Accordingly, if farming operations

are conducted on the enclosed land, the way of necessity should provide an entry

and exit for agricultural implements and machinery, trucks, and other motor

vehicles.260

Before the court grants a way of necessity neither the dominant nor the servient

owner’s rights are affected.261 A right of way of necessity binds the surrounding

properties as of right at the moment the property becomes landlocked. However,

once it is established, this right of way can only be enforced by a court order, against

a specific neighbouring property. The court order extends to all other persons who

visit the owner of the dominant tenement in the normal course of events.262 The

affected landowner is bound by the court order and has to tolerate the use of part of

his land for access to the public road.263 The effect is that the servient owner’s right

to exclude as well as his right to free and unburdened ownership is limited.264

259

Sanders NO & Another v Edwards NO & Others 2003 (5) SA 8 (C). In light of the decision in

Sanders, Van der Merwe CG and Pienaar JM “Law of property (including real security)” 2003 Annual

Survey of South African Law 376-428 415 argue that the court’s decision represents the modern trend

with regard to ways of necessity that relaxes the strict requirement that the land must be completely

landlocked, in favour of the principle that ways of necessity can be granted to improve the economic

exploitation of land in general. See also Van der Merwe CG “The Louisiana right to forced passage

compared with the South African way of necessity” (1999) 73 Tulane Law Review 1363-1413 1412-

1413.

260 Van Rensburg v Coetzee 1979 (4) SA 655 (A) 671E.

261 Southwood MD The compulsory acquisition of rights (2000) 115.


th ed

2006) 328.


of necessity” (1999) 73 Tulane Law Review 1363-1413 1372.


rd ed 2011) 453; Van der Merwe CG “The Louisiana


Review 1363-1413 1364-1365, 1372.


168

Compensation is therefore required to soften the effect of any loss suffered by the

servient owner.

Another example of limitations originating ex lege from common law principles

in the area of neighbour law is the case where a building encroaches on another’s

property without his consent.265 Generally speaking, encroachment concerns the

unlawful intrusion of material objects, into, onto or over the land of the neighbour, for

example a building erected wholly or substantially on a neighbour’s land.266 In

general, this wrong is regarded as a disturbance of possession that requires a

remedy.267 The remedy that the South African common law allows in such a case is

for an affected landowner to approach the courts for an order of removal of the

encroaching structure on his land.268 Removal of the encroaching structure is the

265

There are two recognised forms of encroachment, namely building works and overhanging

branches and intruding roots of trees. Both forms result in a permanent physical invasion of the

neighbouring land when the encroachment violates the boundary line demarcating the two properties,

and thereby encroaches on the land of another. This dissertation focuses only on instances where

building encroachments are left in place by court order. See Van der Walt AJ The law of neighbours

(2010) 132. See also Badenhorst PJ, Pienaar JM & Mostert H Silberberg & Schoeman’s The law of

property (5th ed 2006) 121.

266 Milton JRL “The law of neighbours in South Africa” 1969 Acta Juridica 123-269 145, 234; Van der

Merwe CG Sakereg (2nd

ed 1989) 201-203; Badenhorst PJ, Pienaar JM & Mostert H Silberberg &

Schoeman’s The law of property (5th ed 2006) 121-127.

267 Milton JRL “The law of neighbours in South Africa” 1969 Acta Juridica 123-269 234.


nd ed 1989) 202; Badenhorst PJ, Pienaar JM & Mostert H Silberberg

& Schoeman’s The law of property (5th ed 2006) 121-127; Milton JRL “The law of neighbours in South

Africa” 1969 Acta Juridica 123-269 237; Van der Merwe CG & Cilliers JB “The ‘year and a day rule’ in

South African law: Do our courts have a discretion to order damages instead of removal in the case of

structural encroachments on neighbouring land?” (1994) 57 Tydskrif vir Hedendaagse Romeins-

Hollandse Reg 587-593 588; Van der Walt AJ “Replacing property rules with liability rules:

Encroachment by building” (2008) 125 South African Law Journal 592-628 592; Boggenpoel ZT “The

discretion of courts in encroachment disputes [discussion of Phillips v South African National Parks

Board (4035/07) [2010] ZAECGHC 27 (22 April 2010)]” (2012) 23 Stellenbosch Law Review 252-264

255. See also Pike v Hamilton, Ross & Co (1855) 2 Searle 191 196, 198, 200; Van Boom v Visser

(1904) 21 SC 360 361; Stark v Broomberg (1904) 14 CTR 135 137.


169

default remedy for encroachments and it also acts as a declaration of the affected

landowner’s rights.269 Van der Merwe points out that the remedy is a mandatory

interdict (injunctive relief) to enable the removal of the encroachment so that an

owner can continue enjoying the full and undisturbed use of his property.270 The

purpose of the remedy of removal is to restore the status quo ante.271 The right of an

owner to demand removal would, in principle, seem to be absolute for he is

vindicating the freedom of his property from unlawful interference.272 The right to

insist on the removal of the encroachment is consistent with the concept of

ownership as the most extensive real right which a person can have in respect of an

object, whether movable or immovable.273 Accordingly, the basis of the remedy of

removal is that the landowner can exercise his ownership rights free of any

interference.274

The problem occurs in cases when the court exercises its discretion in favour of

leaving the encroachment in place instead of removal, thereby denying the affected

269

Pike v Hamilton, Ross & Co (1855) 2 Searle 191. See subsequent cases Van Boom v Visser

(1904) 21 SC 360; Stark v Broomberg (1904) 14 CTR 135 137.


nd ed 1989) 201-201; Van der Walt AJ The law of neighbours (2010)

133. The encroachment has a direct physical impact on the affected landowner’s undisturbed and full

enjoyment of his land. This is because the encroacher is not exercising his ownership entitlements but

is interfering with the neighbouring landowner’s entitlement of use and enjoyment. With regard to the

effects of the permanent physical intrusion posed by an encroachment, see Boss Foods CC v Ingo

Rehders Properties and Another [2014] ZAGPJHC 236 (26 May 2014) para 39.

271 Boggenpoel ZT “Creating a servitude to solve an encroachment dispute: A solution or creating

another problem?” (2013) 16 Potchefstroom Electronic Law Journal 455-486 466.

272 Milton JRL “The law of neighbours in South Africa” 1969 Acta Juridica 123-269 241.

273 Van der Merwe CG & Cilliers JB “The ‘year and a day rule’ in South African law: Do our courts

have a discretion to order damages instead of removal in the case of structural encroachments on

neighbouring land?” (1994) 57 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 587-593 588.

274 Van der Walt AJ The law of neighbours (2010) 133, citing Van der Merwe CG Sakereg (2

nd ed

1989) 201-202; Boggenpoel ZT “Creating a servitude to solve an encroachment dispute: A solution or

creating another problem?” (2013) 16 Potchefstroom Electronic Law Journal 455-486 455.


170

landowner’s right to demand removal. What has crystallised in a number of fairly

recent cases is that courts are not shy to exercise their discretion to award

compensation in place of removal.275 The discretion of the court is wide and

equitable and depends on the circumstances in the particular case. The court will

usually take the extent and nature of the encroachment into consideration, for

example, the size of the encroachment to determine whether removal or

compensation would be the appropriate remedy.276

275

Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 281 (C). In this case, the plaintiff sought an

order precluding the defendant from removing the encroachment that covered 80 percent of his

property. It was questioned whether removal should be ordered in favour of the defendant or whether

the court should exercise its discretion in favour of the plaintiff, leaving the encroachment in place.

The court decided in favour of the plaintiff and denied the order for removal of the encroachment. See

also Rand Waterraad v Bothma en ’n Ander 1997 (3) SA 120 (O); Phillips v South African National

Parks Board (4035/07) [2010] ZAECGHC 27 (22 April 2010) para 21. In Roseveare v Katmer, Katmer

v Roseveare and Another (2010/44337, 2010/41862) [2013] ZAGPJHC 18 (28 February 2013) para

15 the court confirmed that courts generally have a discretion in encroachment cases to award

compensation instead of the removal of the encroaching structure. See also Van der Walt AJ The law

of neighbours (2010) 161; Boggenpoel ZT “The discretion of courts in encroachment disputes

[discussion of Phillips v South African National Parks Board (4035/07) [2010] ZAECGHC 27 (22 April

2010)]” (2012) 23 Stellenbosch Law Review 252-264 255; Boggenpoel ZT “Creating a servitude to

solve an encroachment dispute: A solution or creating another problem?” (2013) 16 Potchefstroom

Electronic Law Journal 455-486 455, 465; Boggenpoel ZT “Property” 2014 (1) Juta’s Quarterly

Review of South African Law para 2 2 2. In most encroachment cases, the courts do not explain the

implications of its decision to award compensation in place of removal – on the ownership of the

affected land. See in this regard Rand Waterraad v Bothma en ’n Ander 1997 (3) SA 120 (O) 130.

See also Van der Walt AJ “Replacing property rules with liability rules: Encroachment by building”

(2008) 125 South African Law Journal 592-628 596. It is questionable whether courts can order

transfer of the encroached-upon land in addition to compensation. See Boggenpoel ZT “Compulsory

transfer of encroached-upon land: A constitutional analysis” (2013) 76 Tydskrif vir Hedendaagse

Romeins-Hollandse Reg 313-326.

276 Boggenpoel ZT “The discretion of courts in encroachment disputes [discussion of Phillips v South

African National Parks Board (4035/07) [2010] ZAECGHC 27 (22 April 2010)” (2012) 23 Stellenbosch

Law Review 252-264. See also Boss Foods CC v Ingo Rehders Properties and Another [2014]

ZAGPJHC 236 (26 May 2014).


171

In instances where the default remedy is not applied strictly, the affected

landowner is left with no choice but to accept the continued existence of the

encroachment, even if it is large and significant.277 In the process, the court’s

decision to leave the encroachment in place and award compensation may prevent

the landowner from enforcing his right to exclude.278 This constitutes a deviation from

the long-standing common law remedy of removal of the encroaching structure.279

There are three kinds of losses that can result from an encroachment when the

courts decide to leave it intact. The encroachment results in a permanent loss of use

and enjoyment of a portion of the affected landowner’s property280 if the affected

landowner is forced to accept the existence of the encroaching structure, sometimes

in exchange for compensation.281 In some instances, the courts have actually

277

In Rand Waterraad v Bothma en ’n Ander 1997 (3) SA 120 (O), the court stated that it would be

willing to exercise its discretion in favour of damages instead of removal. Similarly, in Trustees, Brian

Lackey Trust v Annandale 2004 (3) SA 281 (C) paras 26-28, the court exercised its discretion to deny

removal and left the encroachment in place. See also Boss Foods CC v Ingo Rehders Properties and

Another [2014] ZAGPJHC 236 (26 May 2014); Fedgroup Participation Bond Managers (Pty) Limited

vs Trustee of the Capital Property Trust Collective Investment Scheme in Property (unreported, 10

December 2013: GJ case no 41882/12). See Boggenpoel ZT “Property” 2014 (1) Juta’s Quarterly

Review of South African Law para 2 2 2 for a detailed discussion of the Fedgroup case.

278 Van der Walt AJ Property in the margins (2009) 171; Van der Walt AJ The law of neighbours

(2010) 139-194.

279 Rand Waterraad v Bothma en ’n Ander 1997 (3) SA 120 (O) 130; Trustees, Brian Lackey Trust v

Annandale 2004 (3) SA 281 (C) paras 17-31; Phillips v South African National Parks Board (4035/07)

[2010] ZAECGHC 27 [22 April 2010] para 21. See also Van der Walt AJ “Replacing property rules

with liability rules: Encroachment by building” (2008) 125 South African Law Journal 592-628 592-

600.

280 Rand Waterraad v Bothma en ’n Ander 1997 (3) SA 120 (O); Trustees, Brian Lackey Trust v

Annandale 2004 (3) SA 218 (C). See also Van der Walt AJ “Replacing property rules with liability

rules: Encroachment by building” (2008) 125 South African Law Journal 592-628 622.

281 Rand Waterraad v Bothma en ’n Ander 1997 (3) SA 120 (O); Lombard v Fischer [2003] 1 All SA

698 (O); Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 218 (C). See also Temmers Z

Building encroachments and compulsory transfer of ownership (2010) unpublished LLD dissertation


172

purported to create a servitude in favour of the encroacher to explain what happens

when the encroachment is not removed.282 Another outcome that could result from

an encroachment is that a court explicitly orders that the encroached-upon land be

transferred to the encroaching neighbour.283 The landowner’s right to exclude is

significantly limited regardless of whether the order is simply to leave the

encroachment in place; a servitude is created; or transfer of the encroached-upon

land is ordered.284 This results in an effective or actual transfer of the land or other

Stellenbosch University 144-145; Van der Walt AJ The law of neighbours (2010) 195-202; Van der

Walt AJ Constitutional property law (3rd

ed 2011) 453-454.

282 Recently in Roseveare v Katmer, Katmer v Roseveare and Another (2010/44337, 2010/41862)

[2013] ZAGPJHC 18 (28 February 2013) the court dealt with a dispute between neighbours

concerning an encroaching boundary wall between two neighbours. The boundary wall encroachment

resulted in a portion of the plaintiff’s land being incorporated as part of the defendant’s land. The court

ordered the plaintiff (affected landowner) to register a servitude in favour of the defendant

(encroacher) in respect of the remaining area of the encroachment. It is unclear whether the court has

the authority to make such an order and what the constitutional implications are. See Boggenpoel ZT

“Property” 2013 (1) Juta’s Quarterly Review of South African Law para 2 3 1. Boggenpoel ZT

“Creating a servitude to solve an encroachment dispute: A solution or creating another problem?”

(2013) 16 Potchefstroom Electronic Law Journal 455-486 469 argues that the Roseveare judgement

does not entirely clarify the basis on which the court assumes the power to additionally order that a

servitude be created to preserve the existing situation (that is in a case where the encroachment

remains intact). An important aspect to note is that the servitude in this case is created by court order

against the will of the affected landowner and without his consent. The possibility of creating such a

servitude in encroachment cases did not exist under the common law. See Roseveare v Katmer,

Katmer v Roseveare and Another (2010/44337, 2010/41862) [2013] ZAGPJHC 18 (28 February

2013) paras 8, 22. See also Boggenpoel ZT “Property” 2013 (1) Juta’s Quarterly Review of South

African Law para 2 3 1; Boggenpoel ZT “Creating a servitude to solve an encroachment dispute: A

solution or creating another problem?” (2013) 16 Potchefstroom Electronic Law Journal 455-486 469,

479.

283 Van der Walt AJ The law of neighbours (2010) 196; Boggenpoel ZT “Compulsory transfer of

encroached-upon land: A constitutional analysis” (2013) 76 Tydskrif vir Hedendaagse Romeins-

Hollandse Reg 313-326 314. See also Phillips v South African National Parks Board (4035/07) [2010]

ZAECGHC 27 (22 April 2010) para 9.

284 In this regard see Boggenpoel ZT “The discretion of courts in encroachment disputes [discussion

of Phillips v South African National Parks Board (4035/07) [2010] ZAECGHC 27 (22 April 2010)”


173

entitlements of ownership like use, the right to exclude and the right of disposal with

regard to the particular portion of land.285

3 5 Conclusion

The constitutional perspective adopted in this chapter had an influence on the

decision to focus on the different origins of limitations. This chapter shows that the

Constitution, legislation and common law principles that grant access and use rights

to non-owners, for various purposes, impose limitations on the right to exclude. This

observation is in line with the developments in literature concerning situations in

which access to land is upheld at the expense of a landowner’s right to exclude.286

An overview of the limitations on the right to exclude indicates that limitations with

different origins work in different ways. The origins of the limitations show the

purpose for the limitation, the nature of the limitation and how it is implemented.

(2012) 23 Stellenbosch Law Review 252-264 259; Boggenpoel ZT “Creating a servitude to solve an

encroachment dispute: A solution or creating another problem?” (2013) 16 Potchefstroom Electronic

Law Journal 455-486 456.

285 The creation of a servitude and the instances in which the court orders transfer of property has far-

reaching implications because a forced transfer of property rights occurs and this needs to comply

with section 25 of the Constitution. An interesting question is whether the effect the encroachment has

on the landowner’s right to exclude where a court transfers ownership rights or entitlements from the

affected landowner, against his will, to the encroacher, can be justified and whether it can pass

constitutional muster. This is discussed in Chapter 4 below.


Review 745-820 746-748; Dagan H “The social responsibility of ownership” (2007) 92 Cornell Law

Review 1255-1274 1255-1256; Singer JW “Democratic estates: Property Law in a free and

democratic society” (2009) 94 Cornell Law Review 1009-1062 1048; Singer JW “Property as the law

of democracy” (2014) 63 Duke Law Journal 1287-1335; Alexander GS “Property’s ends: The

publicness of private law values” (2014) 99 Iowa Law Review 1257-1296. These sources and many

others in this regard are discussed in the preceding chapter (Chapter 2 section 2 2 4), which looks at

theoretical justifications for limiting the landowner’s right to exclude.


174

If the limitation originates from the Constitution, the reason for the limitation is

the Constitution. This means that if the limitation results from protecting non-property

constitutional rights such as life, equality and dignity, the limitation is stronger than

the right to exclude because it is constitutional and the right to exclude is not. The

specific constitutional right precedes the right to exclude and thus limitations on the

latter are inherent in the constitutional system. The limitation takes on a very specific

meaning, which indicates that the right to undermine someone else’s right to life,

dignity and equality was not included in the notion of ownership and is not part of the

right to exclude. Courts are inclined to secure non-property constitutional rights like

life, human dignity and equality at the cost of the landowner’s right to exclude

because those rights are by nature unqualified. Therefore, in cases where access to

land is essential to the protection of these constitutional rights, they are upheld. The

constitutional limitations are different in that resolving a conflict between the right to

exclude and one of the non-property constitutional rights does not involve balancing,

because those rights cannot be limited or qualified.287 The equality cases belong to

the legislative category because PEPUDA and public accommodations laws place

statutory limitations on the right to exclude.

If the limitation originates in legislation, the purpose of the limitation appears

from the legislation in question. Often the legislation goes further than that; it shows

how to do the balancing and how to resolve the conflict. When the right to exclude

clashes with a constitutionally and statutorily protected right such as free speech or

movement, it is the legislation that implements limitations on the right to exclude and

that shows why and how it is limited. The conflict is resolved by balancing the two

287

The reason for the limitation in these cases comes from the Constitution. In Chapter 4 I argue that

the section 25(1) analysis is not relevant in these cases.


175

conflicting rights in accordance with the legislation. In such cases, there is no

overriding of the right to exclude; instead, it is limited in a specific way by balancing it

against a statutory right. The conflicting rights are both subject to limitation and

regulation and they can therefore be balanced against each other in a way that

accommodates both rights. Therefore, it is never a question purely of overriding the

right to exclude but of accommodating the conflicting rights.

Limitations originating in common law are similar to statutory ones except that

the reasons for them are not just policy in a broad sense but also balance of

convenience. Limiting the right to exclude on a balance of convenience does not

appear from the statutory examples, but that is the justification for the common law

example of encroachment. If there is a dispute, the common law shows how to do

the balancing and how to resolve the conflict. The common law examples involve

overriding the right to exclude; usually, the affected landowner is awarded

compensation. In statutory cases, compensation is sometimes awarded but it is the

exception rather than the rule. For example, when the right to freedom of speech that

is regulated by legislation clashes with the right to exclude, it is never the case that

the owner whose right is limited is paid compensation, but instead, both rights are

upheld. The legislation, and sometimes the landowner, imposes time, place and

manner restrictions that determine when and how the right to exclude is limited.

Contrary to the common law examples, the conflicting rights are therefore mutually

accommodated and balanced. The common law limitations are different because

they usually involve weighing of the competing interests to determine the suitable

outcome, and if the landowner’s right is limited compensation is often payable.

To conclude, analysis of the different origins of limitations imposed on the right

to exclude confirms that ownership functions not only within a legal system but also


176

in a constitutional system that includes limitations. Therefore, justification for the

limitation does not entail justifying the existence of the limitation but rather regulating

the implementation and effect of the limitation.


177

Chapter four:

Justifications

4 1 Introduction

The questions in this chapter are: what are the justifications for limiting the right to

exclude by affording access rights to non-owners? Are these limitations

constitutionally justifiable? Must the limitations caused by access rights be justified in

all cases? These questions do not only entail whether there are sufficient reasons to

justify non-owners’ access rights but also whether there are legitimate reasons to

justify why landowners should carry such a burden. The broader question concerns

the justifications for granting non-owners access rights to land, without the

landowner’s permission or prior consent.

Conclusions from preceding chapters suggest that the right to exclude is after

all not so central to property law and hence some limitations are not difficult to

justify.1 I established in Chapter 2 that the strong view of absoluteness requires

normative justifications for the existence of these limitations, whereas the qualified

view of absoluteness does not necessarily require such a strong normative

justification. Justification on normative grounds is based on the assumption that

ownership is in principle unlimited, that is, it is pre-social and pre-constitutional. As

appears in Chapter 2, this assumption is theoretically and doctrinally weak.

Therefore, one can assume that property rights are in principle limited and contextual

in the sense that they function within a legal system of which limitations are an

1 In both Chapters 2 and 3 I established that the right to exclude is not absolute and that it is subject

to limitations.


178

inherent part. The sources of the various limitations, for example the Constitution,

statutes and common law, have already been established in Chapter 3. At the end of

Chapter 3 I established that property rights are also part of a constitutional system.

What remains to be considered is whether the limitations discussed in Chapter 3 are

justifiable in the constitutional setting.

In the constitutional perspective, it is not necessary to consider justification on

normative grounds. Instead, two other types of justification are discussed in this

chapter, arguing from the assumption that ownership is not in principle unlimited.

The two types of justification that are relevant in the constitutional context involve the

authority of a specific limitation and the section 25(1)2 justification for the effect that a

specific limitation has on specific owners. Section 25(1)-type justification is only

relevant if there is a constitutional property clause, as is the case in South African

law.3

The first type of justification discussed in this chapter entails that there must be

authority and a statutory or policy reason for imposing a specific limitation on the

landowner’s right to exclude. The justificatory grounds that usually justify limitations

on the right to exclude in this sense include direct obligations arising from non-

2 Section 25 (1) of the Constitution of the Republic of South Africa, 1996.

3 In the absence of a property clause this process might adopt a different form, such as constitutional

review. The South African property clause provides that “no one may be deprived of property except

in terms of the law of general application, and no law may permit arbitrary deprivation of property”.

Section 25(1)-(3) of the Constitution guarantees the protection of existing property rights against

unconstitutional interference, while section 25(5)-(9) provides a guarantee of state action to promote

land and other related reforms. Section 25(4) is an interpretative provision that applies to both

sections 25(1)-(3) and 25(5)-(9). The property clause also embodies a commitment to land reform.

The result is that property rights (including the right to exclude) are subject to regulatory restrictions,

in the form of legislation, to carry out the necessary reforms. See Van der Walt AJ Constitutional

property law (3rd

ed 2011) 12-16.


179

property constitutional rights; legislation giving effect to non-property constitutional

rights; legislation that does not give effect to non-property constitutional rights; and

common law principles applying to non-consensual access rights. The right to

exclude is limited for particular purposes, such as furthering public policy or

advancing land reform. The justification for the limitation of the right to exclude in

these cases is often a matter of how well it serves these specific purposes.

Secondly, for a specific limitation, in a particular case, the section 25(1)-type

justification may also be necessary. In addition to the law of general application

requirement section 25(1) justification adopts the form of the non-arbitrariness

requirement. The non-arbitrariness requirement in section 25(1) is a proportionality-

based test that ensures that the effects of a particular limitation are justified in the

sense that they are not unjustifiably unfair or disproportionate. Limitations emanating

directly from a constitutional provision, without intervening legislation, might not

require the section 25(1) justification, or proportionality justification, at least not

always,4 because the rights to life, dignity and equality cannot be balanced against

the right to exclude.

Accordingly, the discussion of the justifications for limiting the right to exclude in

this chapter does not focus on the reasons for granting non-owners access rights,

but rather on the authority for and the effects of limiting the landowner’s right to

exclude. These justifications are analysed from a constitutional perspective.

4 See the discussion below in section 4 2 1.


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4 2 Justification for a specific limitation

4 2 1 Non-property constitutional rights

From the point of view adopted in Chapter 2, the right to exclude others may or may

not be central to the notion of ownership, but it is not absolute and it can be assumed

that property is limited in principle. Limitations therefore always are possible, the

remaining question being only how they are imposed and what their effects are. In a

constitutional context, particularly the South African context, non-property

constitutional rights such as the right to life, human dignity and equality are so

fundamental that their protection sometimes requires limiting the right to exclude.5

The right to exclude sometimes clashes with non-property constitutional rights of

non-owners who need access to property to exercise their constitutional rights such

as the right to life, dignity and equality. When there is a clash between the right to

exclude and one of these rights, the courts tend to uphold the non-property

constitutional rights. The case law dealing with the clash between the landowner’s

right to exclude and non-property constitutional rights indicates that where the

protection of rights like life, equality and dignity depends on access to land, the right

to exclude is limited accordingly.6

5 In the German law context Grimm D “Dignity in a legal context and as an absolute right” in

McCrudden C (ed) Understanding human dignity (2013) 381-391 387-388 explains that dignity is

regarded as an absolute right and that every infringement of it is a violation.

6 Arguing from a German law perspective, Grimm D “Dignity in a legal context and as an absolute

right” in McCrudden C (ed) Understanding human dignity (2013) 381-391 388 states that dignity as an

absolute right always trumps and no limitation can be justified if it is at stake. The argument that Fox

O’Mahony makes in her work on property outsiders and displacement through eviction especially of

vulnerable people (old age people), provides further theoretical support for the argument that I make

in this dissertation regarding non-property constitutional rights such as right to life, dignity and

equality. Although her work is not based on the South African Constitution, her argument is more or

less the same that there are stronger constitutional rights that should override the right to exclude.

See Fox O’Mahony L & Sweeney JA “The idea of home in law: Displacement and dispossession” in


181

The purpose of justification in this context is to determine the authority for

limiting the right to exclude so as to secure non-property constitutional rights of non-

owners with regard to the land. These rights are not generally subject to democratic

deliberation, regulation and/or limitation7 and therefore the justificatory process does

not involve a proportionality-type balancing of the conflicting rights.8 The justification

in these cases involves the determination of reasons whether the right to exclude is

indeed limited to secure and protect non-property constitutional rights, and whether

there is valid authority for the limitation. The authority is usually constitutional.

The decision in State of New Jersey v Shack9 confirms that the right to exclude

is limited on constitutional grounds if the exclusion of non-owners from privately

owned land would result in an interference with fundamental non-property

constitutional rights such as life and dignity. Van der Walt explains that the court in

State of New Jersey v Shack treated the conflict between the landowner’s right to

exclude and migrant farmworkers’ right to life and dignity as a matter of determining

where the limits of the right to exclude have to be drawn to secure the constitutional

right to life and dignity.10 The court did not balance the conflicting rights against each

other, but secured the right to life and dignity by accepting that the right to exclude is

qualified and determining where the limits of exclusion have to be drawn to ensure

Fox O’Mahony L & Sweeney JA (eds) The idea of home in law: Displacement and dispossession

(2011); Fox O’Mahony L Home equity and ageing owners: Between risk and regulation (2012); Fox

O’Mahony L “Property outsiders and the hidden politics of doctrinalism” (2014) 62 Current Legal

Problems 409-445.

7 See Chapter 3, section 3 2 above. See also Van der Walt AJ “The modest systemic status of

property rights” (2014) 1 Journal for Law, Property and Society 15-106 45.


and Society 15-106 51, 61.

9 58 NJ 297 (1971).




182

that the right to life and dignity is protected.11 The decision highlights the fact that

limiting the right to exclude is constitutionally justified because of the need to protect

and uphold the right to life and dignity of migrant farmworkers.12

The constitutional protection of fundamental rights also justified the limitation of

the right to exclude in Victoria and Alfred Waterfront (Pty) Ltd and Another v Police

Commissioner of the Western Cape and Others,13 where the court dismissed the

argument that the landowners have a right to exclude that needs to be protected. In

South African law, fundamental rights are not ranked hierarchically, but the

Constitutional Court has established that the right to life and dignity are the most

important human rights and the source of all other rights in the Bill of Rights.14 The

Victoria and Alfred Waterfront decision strengthens the argument that when the right

to exclude clashes with a fundamental right such as the right to life, the question is

not a justification for limiting the right to exclude, but instead for the view that

property is inherently limited and that the right to exclude is relative. A fundamental

right such as the right to life justifiably imposes limitations on the landowner’s right to

exclude non-owners from the premises, which practically form a suburb of Cape

11



12 See also Folgueras v Hassle 331 F Supp 615 (1971) 624-632.

13 [2004] 1 All SA 579 (C) 448. Alexander GS The global debate over constitutional property: Lessons

from American takings jurisprudence (2006) 11-12 states that “the South African Constitution

recognises duties as well as rights and stresses as its core value human dignity rather than individual

liberty.” He adds that the Constitution recognises specifically enumerated social and economic rights

as positive constitutional rights.

14 S v Makwanyane 1995 (3) SA 391 (CC) paras 144, 146, 214, 217. Currie I & De Waal J The bill of

rights handbook (6th ed 2013) 250-253, 258-259 argue that the right to life and dignity are unqualified

and are given stronger protection than other rights. See also Woolman S “Dignity” in Woolman S &

Bishop M (eds) Constitutional law of South Africa volume 3 (2nd

ed OS 2005) ch 36 1-75 19-24; Van

der Walt AJ “The modest systemic status of property rights” (2014) 1 Journal for Law, Property and

Society 15-106 49.


183

Town. The right to life includes the right to a livelihood and, in this case, the right to

beg for a living. To ratify a blanket entry prohibition against the affected persons

would interfere with their source of livelihood and would impact on their right to life.

The court referred to Olga Tellis v Bombay Municipal Corporation,15 where the

Supreme Court of India held that the right to life, which encompasses the right to a

livelihood, is a fundamental constitutional right that cannot be waived.16 The

exclusion of the pavement and slum dwellers would have amounted to a deprivation

of their means of a livelihood and consequently their right to life. Since the right to life

must be protected without qualification, the right to exclude had to give way.

The right to equality also places a limitation on the right to exclude that requires

justification. The limitation emanates from a constitutional provision and is also

embodied in legislation, which makes the right to equality slightly different from the

right to life and dignity, although it remains unqualified. Public accommodations

laws17 were enacted in the US to protect the public against exclusion from public

accommodations on the grounds of race.18 These public accommodations laws limit

the landowner’s right to exclude, but the limitations are justified because they secure

and promote the right to non-discrimination. In South African law PEPUDA has

similar effects. PEPUDA was enacted to give effect to section 9 of the Constitution

(the equality provision). PEPUDA reflects the goal of a democratic and constitutional

society, where landowners are prevented from excluding non-owners on the grounds

of race, gender and disability. PEPUDA and public accommodations laws limit the

15

(1986) SC 180 para 32. See also Tellis and Others v Bombay Municipal Corporation and Others

[1987] LRC (Const) 351.

16 The right to life is entrenched in article 21 of the Constitution of India 1949.

17 Such as the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990.


nd ed 2005) 45-86.


184

landowner’s right to exclude to protect and promote public interests as well as to

ensure equal treatment of all persons.

The point in this section is that when the right to exclude clashes with non-

property constitutional rights such as rights to life, dignity and equality, the exercise

of the right to exclude is limited insofar as it is necessary to secure and protect these

constitutional rights. In such cases, it is not expected that the non-property

constitutional rights should be limited to accommodate the right to exclude because

these rights are unqualified. In addition, it is impossible to limit the right to life, dignity

and equality without undermining them. Therefore, a proportionality-based

justification will not apply in these cases because the non-property constitutional

rights cannot be weighed against the right to exclude.19

Justification in this context does not involve justifying the existence of

limitations. This section assumes that limitations are in general justified if there is a

reason for them and their effect is proportionate. The reason for the limitation is the

non-property constitutional rights, and the authority for the limitation is the

Constitution. With regard to the equality cases, the authority for the limitation is the

legislation specifically enacted to give effect to the right to equality. If the effect of the

limitation is an issue, section 25 of the Constitution or other proportionality tests may

follow, but usually not required because preventing a landowner from discriminating

does not result in loss of a valuable property entitlement. The intervening legislation

means that one has to at least consider the section 25(1)-type justification because

the legislation needs to be properly introduced and implemented.

19




185

4 2 2 Legislation directly giving effect to a non-property constitutional right

This section examines the justificatory grounds that are usually considered when the

landowner’s right to exclude is limited when it clashes with legislatively-enforced,

constitutionally protected non-property rights. The legislation limits the right to

exclude so as to protect constitutional rights such as the right to freedom of speech,

strike and picket, freedom of movement, and secure tenure. These non-property

constitutional rights limit the right to exclude, but since they are subject to democratic

deliberation, regulation and limitation20 with the result that conflicts between the right

to exclude and these rights can usually be resolved by limiting both rights and

looking for a suitable accommodation from both sides.21 The justification for

limitations arising from these statutory regulatory measures is fairly easy to establish

insofar as they are implemented to promote the public interest, and in some

instances to implement certain constitutional imperatives. Statutory rights are not

judicially balanced with the right to exclude because such balancing of rights has

usually already been done by the legislature when drafting the statutes. The point is

therefore usually to establish the desired balance with reference to the goals and

requirements set out in the legislation.

US case law that deals with expressive activities in quasi-public places such as

a shopping mall indicates that the exercise of freedom of expression rights (speech

and petitioning)22 can sometimes not be prohibited but can reasonably be limited in a

20



21 For example see the decisions of Marsh v Alabama 326 US 501 (1946) 506; Committee for the

Commonwealth of Canada v Canada [1991] 1 SCR 139 (SC); Victoria and Alfred Waterfront (Pty) Ltd

and Another v Police Commissioner, Western Cape and Others (Legal Resources Centre as Amicus

Curiae) 2004 (4) SA 444 (C).

22 The First Amendment to the United States Constitution (1791).


186

way that ensures the exercise of the right of free speech in quasi-public places and

upholds the owner’s right to exclude.23 This implies that freedom of expression rights

are subject to both statutory regulation and conduct rules imposed by the landowner.

In PruneYard Shopping Center v Robins,24 the landowner’s right to exclude was

limited because the owner had invited the public onto his property and non-owners

can exercise their freedom of expression rights in quasi-public premises. In

Growthpoint Properties Ltd v South African Commercial Catering and Allied Workers

Union and Others,25 the court also adopted a balancing approach in solving the

conflict between the constitutional rights to strike and picket and the landowner’s

property rights. The Labour Relations Act 66 of 1995 (LRA) gives effect to labour

rights such as the right to picket26 and strike27 entrenched in the Constitution,

providing that employers may not unreasonably withhold permission to picket on

their premises.28 Since neither right is absolute, the court ordered the strikers to

reduce the level of the noise and the landowners to tolerate the picketing. The

decision relies on balancing language but the result does not reflect judicial

balancing in the sense of the court weighing up of one constitutional right (right to

strike or picket) against the other (property).29 The balancing process entails

determining whether the limitation imposed by the legislation is proportionate, taking

into account that the desired balancing has already been done by the legislature

23

See Marsh v Alabama 326 US 501 (1946); PruneYard Shopping Center v Robins 447 US 77

(1980); New Jersey Coalition Against the War in the Middle East v J.M.B Realty Corp 650 A2d 757

(NJ 1994). See also Chapter 3 above for a detailed discussion of these cases.

24 447 US 77 (1980).

25 (2010) 31 ILJ 2539 (KZD).

26 Section 17 of the Constitution of the Republic of South Africa, 1996.

27 Section 23(2)(c) of the Constitution of the Republic of South Africa, 1996.

28 Currie I & De Waal J The bill of rights handbook (6

th ed 2013) 389.




187

when the LRA was drafted.30 Therefore, as long as the strikers’ actions are in line

with the Act, they are acting within their rights even though their actions involve a

limitation of the owner’s right to exclude. The fact that the legislature has already

struck the balance in the legislation means that it has decided on what would be

allowable when pickets or strikes occur on private land. The outcome in a dispute

between the right to strike or picket and the landowner’s property right is based on

the balance already achieved in the LRA, which entails that both rights can be

exercised in a way that accommodates the other. As a result of the balancing

process already achieved in the legislation and the fact that the limitation of the right

to exclude is authorised by such legislation, the right to exclude is justifiably limited.

A similar result appears in the cases where the right to exclude clashes with the

right to freedom of movement. The Victoria and Alfred Waterfront case highlights the

fact that the affected persons’ right to freedom of movement requires limiting the

right to exclude because permanent exclusion of the respondents from the premises

would clash with their constitutional right to freedom of movement.31 Unlike the right

to life, the right to freedom of movement is limited and consequently the tension

between the right to exclude and freedom of movement should be resolved “in a

manner which permits the rights of both parties to be vindicated to the greatest

extent possible”.32 In the court’s view, the landowners could prohibit certain unlawful

behaviour on their land, but they could not place a blanket entry prohibition on the

30





32 452.


188

affected persons.33 The protection of the right to free movement prohibits landowners

from simply excluding the affected persons.

The limitation of the right to exclude is slightly different in cases dealing with

private land and legislation that imposes limitations on the landowner’s right to

exclude. Legislation such as PIE provides protective measures against unlawful

evictions under section 26(3) of the Constitution. In Port Elizabeth Municipality v

Various Occupiers34 the Constitutional Court stated that under the Constitution, the

protection of property as an individual right is not absolute but subject to societal

considerations. Section 26(3) of the Constitution and land reform laws are meant to

redress past injustices and also to prevent evictions from recurring.35 In light of the

South African history of land dispossessions and the practice of excluding people

from certain privately owned places, land reform and anti-eviction laws were enacted

to regulate landowners’ rights in land to give effect to the constitutional rights of non-

owners.36 The overall effect of the statutory provisions (such as in PIE) is that the

landowners’ traditionally strong common law right to evict (or exclude) is limited.37

The justification for this limitation on the right to exclude comes from the

constitutional goal of the relevant legislation.

In this regard, excluding people from privately owned land would in some cases

be contrary to a specific constitutional provision. Land reform and anti-eviction laws

33



34 2005 (1) SA 217 (CC) para 16.

35 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 19.

36 Section 25 of the Constitution of the Republic of South Africa, 1996 also contains provisions

regarding land reform.

37 Van der Walt AJ “Exclusivity of ownership, security of tenure, and eviction orders: A model to

evaluate South African land- reform legislation” 2002 Tydskrif vir die Suid-Afrikaanse Reg 254-289

288.


189

should therefore be interpreted and applied in line with the constitutional imperative

to prevent arbitrary evictions. Port Elizabeth Municipality v Various Occupiers38

emphasised that when dealing with constitutionally protected rights, the starting and

ending point of the analysis must be to affirm the values of human dignity, equality

and freedom. The specific constitutional right that was at stake in this case is section

26.39 Liebenberg argues that the significance of the Port Elizabeth Municipality v

Various Occupiers decision lies in its insistence that unlawful occupiers (who

enjoyed minimal rights under the previous legislative and common law regime) are

now the bearers of constitutional rights, especially housing rights in section 26 of the

Constitution.40 The housing clause (section 26 of the Constitution) confers on

unlawful occupiers interrelated procedural and substantive protections in the context

of legal steps that have to be followed to evict these occupiers from their homes.41

The section 26 housing right can be balanced with the property rights (the right to

exclude) to decide the outcome of a particular dispute.42 The court referred to other

constitutional rights, namely human dignity, equality and freedom, because they

might function as a support for the housing right. Nevertheless, these rights do not

justify the limitation imposed on the right to exclude. Instead, the justification derives

from legislation such as PIE that gives effect to section 26. Accordingly, non-owners’

use and occupation of privately owned land is secured by limiting the landowner’s

right to exclude as far as it is necessary and reasonable to do so.

38

2005 (1) SA 217 (CC) para 15.

39 Section 26 of the Constitution of the Republic of South Africa, 1996 – housing right.

40 Liebenberg S Socio-economic rights: Adjudication under a transformative constitution (2010) 277.

41 277.

42 It should be noted that the balancing process does not apply to dignity and equality rights. This is

another factor to support the argument that reference to the right to dignity or equality in eviction

cases does not justify the limitation imposed on the landowner’s right to exclude.


190

Section 6(2)(dA) of ESTA, which permits occupiers to bury deceased family

members on private land without the owner’s permission, was enacted to fulfil a

constitutional mandate to ensure that occupiers can exercise their religious and

cultural beliefs, which form an important part of their security of tenure.43 Nhlabathi

and Others v Fick (Nhlabathi)44 highlights the extent to which legislation limits

property rights to promote constitutionally protected non-property rights. The court

did not simply uphold the landowner’s right to exclude but took into account the

rights of the occupiers as prescribed in ESTA and the Constitution and ruled against

the landowner, upholding the transformative obligations embodied in the

Constitution. At the same time, the court did not simply override the landowner’s right

to exclude because the right to a burial is only confirmed after considering the rights

of the landowner and those of the occupiers. Section 6(2)(dA) of ESTA requires that

the competing rights of the landowner and of the occupier must be considered when

determining whether the right to appropriate a grave should be granted and if an

established practice to do so had existed in the past. The court explained that the

establishment of a grave would in most instances constitute a minor intrusion on the

landowner’s right to exclude and in such instances, it is justified to protect occupiers’

religious and cultural rights.45

The fact that legislation purports to give effect to a constitutional right,46 triggers

the subsidiarity principles as they are described by Van der Walt. These principles

43

Nhlabathi and Others v Fick 2003 (7) BCLR 806 (LCC) para 31. See also Van der Walt AJ

“Property, social justice and citizenship: Property law in post-apartheid South Africa” (2008) 19

Stellenbosch Law Review 325-346 343.

44 2003 (7) BCLR 806 (LCC).

45 Nhlabathi and Others v Fick 2003 (7) BCLR 806 (LCC) para 30.

46 The Labour Relations Act 66 of 1995 (enacted to give effect to section 17 – picketing and section

23 - striking), the Extension of Security of Tenure Act 62 of 1997 (enacted to give effect to section


191

establish guidelines that identify the source of law that primarily governs litigation

about an alleged infringement of rights.47 The aim of the subsidiarity principles is “to

ensure Constitution-focused application, interpretation and development of

legislation and the common law, in line with the one-system-of-law-principle

established by the Constitutional Court”.48 According to the first principle, a litigant

who avers that a right protected by the Constitution has been infringed must rely on

legislation specifically enacted to protect that right and may not rely on the

constitutional provision directly when bringing action to protect the right.49 According

to the second principle, a litigant who avers that a right protected by the Constitution

has been infringed must rely on legislation specifically enacted to protect that right

and may not rely on the common law directly when bringing action to protect the

25(6) - tenure security), and the Prevention of Illegal Eviction from and Unlawful Occupation of Land

Act 19 of 1998 (enacted to give effect to section 26(3) – anti-eviction provision).

47 For a detailed discussion of the subsidiarity principles, see Van der Walt AJ “Normative pluralism

and anarchy: Reflections on the 2007 term” (2008) 1 Constitutional Court Review 77-128; Van der

Walt AJ Property and constitution (2012) 35-91.


rd ed 2011) 19-24, 68. See also Pienaar JM Land

reform (2014) 187. In Ex Parte President of the Republic of South Africa: In re Pharmaceutical

Manufacturers Association of South Africa 2000 (2) SA 674 (CC) para 44 the Constitutional Court

clearly stated that:

“There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.”

See further Michelman F “The rule of law, legality and the supremacy of the Constitution” in Woolman

S et al (eds) Constitutional law of South Africa volume 1 (2nd

ed OS 2003) ch 11 1-44 34-39; Davis

DM & Klare K “Transformative constitutionalism and the common and customary law” (2010) 26

South African Journal on Human Rights 403-509 430.

49 The first principle was established in the case of South African National Defence Union v Minister of

Defence 2007 (5) SA 400 (CC) and has since been confirmed in MEC for Education; KwaZulu Natal v

Pillay 2008 (1) SA 474 (CC); Chirwa v Transnet Ltd 2008 (2) SA 24 (CC); Walele v City of Cape Town

and Others 2008 (6) SA 129 (CC); Nokotyana and Others v Ekurhuleni Metropolitan Municipality and

Others 2010 (4) BCLR 312 (CC). See also Van der Walt AJ “Normative pluralism and anarchy:

Reflections on the 2007 term” (2008) 1 Constitutional Court Review 77-128 100- 103; Van der Walt

AJ Property and constitution (2012) 36-37.


192

right.50 When the right to exclude clashes with non-property constitutional rights that

are specifically protected in specifically enacted legislation; the matter should be

decided on the basis of the legislation in question, rather than directly on the basis of

the constitutional right or on the basis of common law.51 This means that in cases

where there is a clash between the right to exclude (which is a common law right)

and a non-property constitutional right, the dispute has to be decided on the basis of

legislation that regulates the limitation on exclusion to give effect to a the

constitutional right. The starting point for adjudication of a dispute about the right to

exclude and non-property constitutional rights should not be the common law right to

exclude but the protection of the non-property constitutional right in accordance with

the legislation enacted to give effect to that right.

The nature of the justification in this section is not to justify the existence of

limitations on the right to exclude (property is assumed to be limited in principle), but

to establish whether there is a valid reason and authority for a specific limitation. The

reason for the limitation is the constitutional right involved in a particular dispute, and

the authority is the legislation enacted to give effect to it. Justification here is a

question of whether the limitation of the right to exclude advances the constitutional

purpose as set out in the legislation. The examples considered in this section show

that the law that imposes limitations on the right to exclude is valid and it seeks to

50

See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC); Minister

of Health NO v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign and Another as Amici

Curiae) 2006 (2) SA 311 (CC); Fuel Retailers Association of Southern Africa v Director-General:

Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga

Province 2007 (6) SA 4 (CC); Chirwa v Transnet Ltd 2008 2 SA 24 (CC); Walele v City of Cape Town

and Others 2008 6 SA 129 (CC). See also Van der Walt AJ “Normative pluralism and anarchy:

Reflections on the 2007 term” (2008) 1 Constitutional Court Review 77-128 103-105; Van der Walt AJ

Property and constitution (2012) 38-39.

51 Van der Walt AJ Property and constitution (2012) 40-43.


193

give effect to a constitutional right. Secondly, the justification involves ensuring that

the effects of the limitation are proportionate as foreseen in the legislation.52

4 2 3 Legislation not directly giving effect to a non-property constitutional right

Some statutory regulatory measures that were not specifically enacted to give effect

to any constitutionally protected right nevertheless limit the landowner’s right to

exclude others from privately owned land. Justification in this context involves

determining the reasons and authority for the limitation of the right to exclude.

Legislation imposing limitations on the right to exclude determines the limits of and

the extent of the limitation to ensure a reasonable balancing of the conflicting rights.

In some instances actual access rights are created, subject to reasonable exercise

requirements that involve mutual accommodation of the landowner’s property rights

(the right to exclude) and non-owners’ right to be on the land.

The landowner’s right to exclude is limited when a judge issues a search

warrant that authorises an officer to enter and search any premises, without the

landowner’s prior permission in the process of conducting an investigation.53 The

right to exclude in these instances is limited by the regulatory exercise of the police

power.54 In terms of the police-power principle, any regulatory action involving a

limitation of the landowners’ right to exclude is justified if it is specifically aimed at

52

The second justification involve the section 25(1) analysis discussed in section 4 3 below.

53 See Chapter 3, section 3 3 2 above.

54 According to Van der Walt AJ Constitutional property law (3

rd ed 2011) 214-215, the police-power

principle means that the state is authorised to regulate the use, enjoyment and exploitation of private

property (existing property interests) even when such regulation involves limiting the property owner’s

entitlements and even when it causes loss. The regulation in terms of the police-power principle

should be imposed generally and for a public purpose.


194

protecting and promoting public health and safety interests.55 The limitation on the

right to exclude non-owners from privately owned land emanating from statutory

powers of search, seizure and forfeiture of property56 is justified by a legitimate

public purpose, namely the protection of public health and safety.57

Statutory limitation of ownership (including the right to exclude) by the joint

exercise of entitlements by sectional owners regarding the common property as well

as by the rules enforced by the body corporate is authorised by the common

interests of the sectional title owners as a whole.58 Limitation of a sectional owner’s

right to exclude forms an inherent part of sectional ownership of a sectional title

scheme, justified in the interest of the sectional title community.59

Statutory access rights that limit the right to exclude others from privately

owned land can also be justified by the notion of a proper social order. Grattan bases

the justification for granting access rights through legislation,60 on a proprietarian

vision of property rights.61 As Alexander puts it, the concept of property as propriety

conceives of property as the material foundation for creating and maintaining a

55

Van der Walt AJ Constitutional property law (3rd

ed 2011) 228, 312.

56 See the Value Added Tax Act 89 of 1991; Income Tax Act 58 of 1962; Investigation of Serious

Economic Offences Act 117 of 1991; Criminal Procedure Act 51 of 1977; Prevention of Organised

Crime Act 121 of 1998.

57 Similarly, in US law lawful searches are justified as they are necessary for the legitimate exercise of

public authorities to serve the public welfare or a public purpose. See Singer JW Introduction to

property (2nd

ed 2005) 39; Van der Walt AJ Constitutional property law (3rd

ed 2011) 226.

58 See the Sectional Titles Act 95 of 1986; the Sectional Titles Scheme Management Act 8 of 2011.

See also Pienaar GJ Sectional titles and other fragmented property schemes (2010) 27.

59 Pienaar GJ Sectional titles and other fragmented property schemes (2010) 46.

60 Such as the Access to Neighbouring Land Act 1992 (UK) and arguably the Party Wall etc Act 1996

(UK).

61 Grattan S “Proprietarian conceptions of statutory access rights” in Cooke E (ed) Modern studies in

property law volume 2 (2003) 353-374 364.


195

proper social order, which is the private basis for the public good.62 The justification

arising from the proprietarian vision of property envisions the subordination of

individual preferences to a substantive vision of a proper social order. The social

ordering that is envisioned is one of a harmonious relationship between neighbours,

where one neighbour subordinates his own interests to that of the other.63 In this

regard, limiting the right to exclude by legislation64 is justified because it promotes

and secures a proper social order. A vision of a proper social order is consistent with

the notion of the social-obligation norm of ownership.65

Access rights in the form of a right to roam can be justified in a similar way.66

The CROW Act can be seen as restoring public access rights that were taken away

by the enclosure movement,67 requiring a balancing of the property rights of

landowners and non-owners’ access rights. Since the public access rights are

exercised by non-owners within strict limitations, it can be argued that the CROW Act

embodies the desired balance between competing interests in land. This means that,

as long as the right to roam is limited to certain places and times and if non-owners

act within the prescribed limitations, the landowners’ rights are preserved and

62

Alexander GS Commodity and propriety: Competing visions of property in American legal thought

1776-1970 (1997) 1. See also Grattan S “Proprietarian conceptions of statutory access rights” in

Cooke E (ed) Modern studies in property law volume 2 (2003) 353-374 355.

63 Grattan S “Proprietarian conceptions of statutory access rights” in Cooke E (ed) Modern studies in

property law volume 2 (2003) 353-374 364.

64 Access to Neighbouring Land Act 1992.

65 Alexander GS “The social-obligation norm in American property law” (2009) 94 Cornell Law Review

745-820.

66 As I mentioned in Chapter 3, section 3 3 2, the CROW Act was enacted to meet the publics’

demand for greater access rights that they had lost because of the enclosure movement. I established

in Chapter 3 that the CROW Act is a notable limitation on the right to exclude.

67 Anderson JL “Countryside access and environmental protection: An American view of Britain’s right

to roam” (2007) 9 Environmental Law Review 241-259 253.


196

balanced with access rights. Therefore, the statutory right to roam provided in the

CROW Act is justified because it supports the exercise of lost but regained public

access rights, which reflect society’s needs and values. The limitation of the right to

exclude is justified with reference to historical and social considerations.

Similarly, the LRSA balances competing interests in land by imposing a duty on

landowners to use and manage their land in a way that is responsible. Landowners

are presumed to be acting responsibly if they do not cause unreasonable

interference with the access rights of any person seeking to exercise them.68 In the

same vein, non-owners are presumed to be taking reasonable access, when such

access gives landowners reasonable measures of privacy and undisturbed

enjoyment around their homes. The LRSA balances the presumption of reasonable

land management and reasonable access taking to the extent that the landowner

cannot deter non-owners from exercising their access rights.69 The limitation of the

right to exclude by the provisions of the LRSA is justifiable because the provisions

foster a potentially transformative property regime that is based on the relationship

between landowner and non-owners, grounded on the principles of reciprocity and

mutual respect.70 Furthermore, the provisions safeguard the landowners’ privacy and

also protect their legitimate land management interests.

Justification in this context is therefore not about justifying the existence of

limitations because property is limited in principle. Instead, justification means there

is reason for a specific limitation on the right to exclude, and authority for it in the

68

Section 3(2) of the LRSA. See also Lovett JA “Progressive property in action: The Land Reform

(Scotland) Act 2003” (2011) 89 Nebraska Law Review 739-818 789.

69 Section 14 of the LRSA prohibits a landowner from preventing access rights.




197

form of legislation. The legislation, for example the CROW Act and LRSA set out the

procedure to ensure that the effect of the limitation is not disproportionate.

4 2 4 Common law rights

The common law principles regarding the right of way of necessity and

encroachment illustrate how the common law, for policy reasons, allows non-owners

to have access to land, in so doing limiting the affected landowner’s right to exclude.

The justification in both cases involves policy considerations, namely economic

efficiency (in right of way of necessity cases) and balance of convenience (in

encroachment cases).71 In each case, the justification involves a balancing of the

conflicting interests. The approach of the courts in right of way of necessity cases is

to balance the policy considerations and the landowner’s property right to determine

whether or not to grant a right of way of necessity. In these instances, it is a question

of whether the impact on the landowner weighs heavier than the policy

considerations. In other words, it is the public policy considerations and the rights of

the owner of the servient tenement that are balanced, the question being whether

policy considerations require the courts to enforce a right of way of necessity on land

against the landowner’s consent. In encroachment cases the courts weigh the rights

of the affected landowner and the encroacher against each other to decide the

balance of convenience. I do not seek to give a detailed discussion of all the

justifications for a court order granting a right of way of necessity or for allowing an

71

The justification is different in these cases because the right of way of necessity is a property

limitation and therefore it requires a property type justification. Whereas encroachment is a delict

issue and the justification is based on delict and not property.


198

encroachment to remain in place.72 Rather, I discuss only those justifications based

on policy considerations that further the argument that the limitations on the right to

exclude on the basis of non-consensual access rights are justifiable.

Scholars and court decisions have propounded various factors that justify

limiting the right to exclude by granting a right of way of necessity over a servient

tenement. Case law shows that a right of way of necessity is granted on the basis of

public policy to promote efficiency and utility benefits in the use of valuable land.73

This is confirmed by the academic literature. Hayden argues that the doctrine of the

way of necessity is based on public policy in favour of the efficient utilisation of land

72

See Raphulu TN Right of way of necessity: A constitutional analysis (2013) unpublished LLM thesis

Stellenbosch University; Van der Walt AJ & Raphulu TN “The right of way of necessity: A

constitutional analysis” (2014) 77 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 468-484 and

Temmers Z Building encroachments and compulsory transfer of ownership (2010) unpublished LLD

dissertation Stellenbosch University for an in-depth analysis of the right of way of necessity and

encroachments, respectively.

73 In Saner v Inanda Road Board (1892) 13 NLR 225 the court confirmed and granted the way of

necessity for the optimal exploitation of the land. In Van Rensburg v Coetzee 1979 (4) SA 655 (A)

671E the court stated that a right of way of necessity must assist the owner of the dominant tenement

(if he is a farmer), to continue with viable farming operations and also for transporting farm produce.

In Naudé v Ecoman Investments en Andere 1994 (2) SA 95 (T) the court granted the owner of the

dominant tenement a right of way of necessity over the neighbouring farm to serve as an access road

to a public holiday resort, despite the change in the use of land. In Sanders NO and Another v

Edwards NO and Others 2003 (5) SA 8 (C) the court granted a right of way of necessity to ensure

successful farming operations. In Jackson v Aventura Ltd [2005] 2 All SA 518 (C) the court granted a

right of way of necessity in favour of the dominant tenement owner for purposes of constructing a

road that would provide access to their landlocked land. Even though the court a quo had granted a

right of way of necessity on the basis of practical need, this decision was later set aside by the

Supreme Court of Appeal in Aventura Ltd v Jackson NO and Others 2007 (5) SA 497 (SCA) 500 in

which the Court ruled that the necessity for a right of way had not been established by the owners of

the dominant tenement. See also Raphulu TN Right of way of necessity: A constitutional analysis

(2013) unpublished LLM thesis Stellenbosch University Chapter 3, section 3 2 for a detailed

discussion on why the right of way of necessity is necessary. See also Van der Merwe CG “The

Louisiana right to forced passage compared with the South African way of necessity” (1999) 73

Tulane Law Review 1363-1413 1382-1383.


199

in the case of landlocked property.74 Van der Merwe states that “public policy

dictates that valuable land, located in a desirable and strategic area, should not be

taken out of use and commerce”.75 According to Southwood, the reason for granting

a way of necessity is that public policy does not allow land to be sterilised by

insufficient access.76 In the absence of an agreement between a servient tenement

owner and a dominant tenement owner, courts step in to grant a right of way of

necessity on the basis of public policy77 related to social and economic goals and the

economic exploitation of land.78 Raphulu concludes that efficient use of land does

74

Hayden TC “Way of necessity – Hanock v Henderson” (1965) 25 Maryland Law Review 254-259

258. See also Southwood MD The compulsory acquisition of rights (2000) 99 who states that the right

of way of necessity has its genesis in public policy.

75 Van der Merwe CG “The Louisiana right to forced passage compared with the South African way of

necessity” (1999) 73 Tulane Law Review 1363-1413 1369.

76 Southwood MD The compulsory acquisition of rights (2000) 99. It should be noted that similar policy

reasons are advanced both when a right of way of necessity and the unilateral relocation of a

specified right of way are granted by a court order. In this regard see Raphulu TN Right of way of

necessity: A constitutional analysis (2013) unpublished LLM thesis Stellenbosch University 81;

Kiewitz L Relocation of a specified servitude of right of way (2010) unpublished LLM thesis

Stellenbosch University 107. See also Linvestment CC v Hammersley and Another 2008 (3) SA 283

(SCA) para 35.

77 Raphulu TN Right of way of necessity: A constitutional analysis (2013) unpublished LLM thesis

Stellenbosch University Chapter 3, section 3 3 for a detailed discussion on public policy and the right

of way of necessity.

78 Van der Merwe CG & Pienaar JM “Law of property (including real security)” 2003 Annual Survey of

South African Law 376-428 415 state that the granting of a way of necessity by a court order in

Sanders NO and Another v Edwards NO and Others 2003 (5) SA 8 (C) represents the modern trend

with regard to ways of necessity that relaxes the strict requirement that land must be completely

landlocked, in favour of the principle that ways of necessity can be granted to improve the economic

exploitation (productiveness) of land in general. In this regard see Van der Merwe CG “The Louisiana


Review 1363-1413 1412-1413. Southwood MD The compulsory acquisition of rights (2000) 106, citing

Wilhelm v Norton 1935 EDL 143 152 and Maree v Raad van Kuratore vir Nasionale Parke 1964 (3)

SA 727 (O) 730 states that the decision to grant and enforce a right of way of necessity on the basis

of public policy makes it possible to make economic use of otherwise inaccessible land, which would

be rendered useless without the right of way.


200

not only benefit the private land owner but also benefits society.79 Society as a whole

benefits from the efficient use of landlocked land because, among other things, the

efficient use of the land raises productivity and creates employment.80

The justification for limitations imposed on the right to exclude in encroachment

cases is different because the policy considerations are largely based on the balance

of convenience. In encroachment cases, the courts’ exercise of their discretion to

leave an encroaching structure in place, even where the encroachment is significant,

is mainly based on pragmatic considerations of equity and fairness.81 Temmers

argues that the courts reject an absolute right to demand removal of the

encroachment for pragmatic and policy reasons.82 The courts’ discretion to leave a

building encroachment intact is determined on the circumstances of each case. The

circumstances that the court relied on to leave the encroachment intact in Rand

79

Raphulu TN Right of way of necessity: A constitutional analysis (2013) unpublished LLM thesis

Stellenbosch University Chapter 3, section 3 3.

80 Van der Merwe CG “The Louisiana right to forced passage compared with the South African way of

necessity” (1999) 73 Tulane Law Review 1363-1413 1412-1413 argues that the rationale for granting

a right of way of necessity is to foster public utility of tracts of land and to protect the social needs of

society.

81 Rand Waterraad v Bothma en ‘n Ander 1997 (3) SA 120 (O) 138; Trustees, Brian Lackey Trust v

Annandale 2004 (3) SA 281 (C) para 34; Roseveare v Katmer, Katmer v Roseveare and Another

(2010/44337, 2010/41862) [2013] ZAGPJHC 18 (28 February 2013) para 21. See also Temmers Z

Building encroachments and compulsory transfer of ownership (2010) unpublished LLD dissertation

Stellenbosch University 5, 93; Boggenpoel ZT “The discretion of courts in encroachment disputes

[discussion of Phillips v South African National Parks Board (4035/07) [2010] ZAECGHC 27 (22 April

2010)]” (2012) 23 Stellenbosch Law Review 252-264 257; Boggenpoel ZT “Compulsory transfer of

encroached-upon land: A constitutional analysis” (2013) 76 Tydskrif vir Hedendaagse Romeins-

Hollandse Reg 313-326 314; Boggenpoel ZT “Creating a servitude to solve an encroachment dispute:

A solution or creating another problem?” (2013) 16 Potchefstroom Electronic Law Journal 455-486

465.

82 Temmers Z Building encroachments and compulsory transfer of ownership (2010) unpublished LLD

dissertation Stellenbosch University 109.


201

Waterraad v Bothma en ‘n Ander (Rand Waterraad)83 were mainly based on the

affected landowner’s delay in bringing the application: the time period between

becoming aware of the encroachment and filing the complaint for its removal shows

that the affected landowner did not suffer any significant harm.84 The court also

relied on the principles of reasonableness and fairness to both parties.85 The loss

that the affected landowner would suffer if the encroachment is left intact was less

than the loss that would be suffered by the encroacher if the encroachment was

ordered to be removed.86 This indicates that the courts weigh the affected

landowner’s interests against the interests of the encroacher to determine the

balance of convenience. In Trustees, Brian Lackey Trust v Annandale (Brian Lackey

Trust)87 the court also reasoned that the encroaching owner would suffer prejudice

should demolition of the encroaching structure be ordered, which would far outweigh

the prejudice suffered by the affected landowner should demolition be denied. The

court considered the cost of demolition, the cost of rebuilding the house and the

inconvenience due to the lengthy delay before completion, as compared to the

prejudice potentially suffered by the plaintiff. The court took into account the fact that

the defendant had effectively lost all use and enjoyment of the property, but found

that unlike the plaintiff, the defendant would be fully compensated for his loss if

compensation was awarded. The court came to the conclusion that compensation

would be appropriate in the circumstances. Similarly, in Roseveare v Katmer, Katmer

83

Rand Waterraad v Bothma en ‘n Ander 1997 (3) SA 120 (O).

84 138-139.

85 Rand Waterraad v Bothma en ‘n Ander 1997 (3) SA 120 (O) 133. See also Boggenpoel ZT

“Creating a servitude to solve an encroachment dispute: A solution or creating another problem?”

(2013) 16 Potchefstroom Electronic Law Journal 455-486 461.

86 Rand Waterraad v Bothma en ‘n Ander 1997 (3) SA 120 (O) 139.

87 Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 281 (C).


202

v Roseveare and Another (Roseveare)88 the court exercised its wide and general

discretion to award compensation instead of removal of the encroachment with

reference to the size of the encroachment, which was insignificant.

Property is limited in principle and therefore the justification in this context is not

for the existence of limitations. In both the right of way of necessity and

encroachment cases, there is reason for limiting the right to exclude, namely policy

in the form of economic efficiency and balance of convenience. The authority of the

limitation is the common law and it can be assumed that the common law is in line

with the Constitution, section 39 and thus it is legitimate and valid.

4 3 Justification for the effect of limitations on owners

4 3 1 Introduction

In section 4 2 above, I discuss the justification for limitations on the right to exclude,

taking into account that property is limited in principle and that the existence of

limitations is therefore to be expected. In instances where the landowner is

prevented from excluding others on the basis of non-property constitutional rights,

legislation or common law, the constitutional provision, legislation or the common law

principle in question will generally provide the reason for the specific limitation and

the necessary authority for imposing it on property rights. In this section, I consider

the constitutional justification for the effects that the limitations might have on a

specific landowner.

This justification process usually takes place in terms of section 25(1), which

aims to test the validity and the proportionality of limitations. Hence, the section 25(1)

88

(2010/44337, 2010/41862) [2013] ZAGPJHC 18 (28 February 2013) para 15.


203

test looks at access rights from the landowner’s perspective, and the question is

usually whether the imposition on his right to exclude is valid and proportionate.

When the law limits a landowner’s right to exclude non-owners, the result is a

deprivation of the landowner’s right to exclude.

The first question that needs to be dealt with in this section is whether the

deprivation caused by the limitation imposed on the right to exclude complies with

section 25(1) of the Constitution. The second question is whether the deprivation

could also constitute expropriation of the landowner’s property in line with section

25(2) of the Constitution.

4 3 2 The structure of section 25

In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African

Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance

(FNB)89 the Constitutional Court held that the purpose of section 25 of the

Constitution is to strike a proportionate balance between the protection of private

property rights and the promotion of the public interest; section 25 therefore serves

both a protective and reformative purpose.90 Broadly speaking, section 25 (1) to (3)

guarantees the protection of existing property rights against unconstitutional

interference and section 25 (5) to (9) is aimed at legitimatising and promoting land

and other related reforms.91 As a result, the property clause has to be regarded as a

89

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First

National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 para 50. See also Roux

T “Property” in Woolman S, Roux T & Bishop M (eds) Constitutional law of South Africa volume 3 (2nd

ed OS 2003) ch 46 1-37 3.


rd ed 2011) 13.

91 Section 25(1) deals with deprivation, section 25 (2) and (3) with expropriation, section 25(4) with

interpretation and sections 25 (5) to (9) with land and other related reforms. There is an inherent


204

constitutional effort at balancing the individual and the public interest in a

constitutional manner.92 The biggest challenge is the seemingly contradictory

relationship between the protection of existing property rights and land reform as well

as other related reform initiatives.93 To avoid the tension between the provisions in

section 25, the property clause must be interpreted and applied with regard to the

historical and constitutional context.94

Generally, the constitutional protection of property differs from private-law

protection of property. The purpose of the constitutional property clause is not to

guarantee and insulate existing property interests (the landowner’s right to exclude)

but to establish and maintain a balance between, on the one hand, the individual’s

(landowner’s) vested rights and, on the other hand, the public interest in the

tension in the property clause between protecting existing rights and the reform of property interests.

These seemingly contradictory provisions are interpreted purposively to ensure that both the

protective and the reformative purposes of section 25 are respected, protected and promoted. See


ed 2011) 12-16.


rd ed 2011) 20-21 argues that the property clause

was drafted in such a way as to legitimatise land reform and to ensure that the constitutional

protection of existing rights should not exclude or frustrate land reforms. See also Van der Walt AJ

“Striving for the better interpretation: A critical reflection on the Constitutional Court’s Harksen and

FNB decisions on the property clause” (2004) 121 South African Law Journal 854-878 866.

Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoeman’s The law of property (5th ed 2006)

521 state that the South African property clause serves a dual purpose, which is to secure existing

rights on the one hand and promote social transformation on the other.

93 Section 25(1)-(3) and section 25(5)-(9). Van der Walt AJ Constitutional property law (3

rd ed 2011)

22 explains that it is both necessary and possible to read the provisions in section 25 “as a coherent

whole that embodies a creative tension within itself, without being self-conflicting or contradictory.” It

is necessary to interpret section 25 purposively as a “coherent whole, within its historical and

constitutional context” to avoid a conflicting approach. See Port Elizabeth Municipality v Various

Occupiers 2005 (1) SA 217 (CC) paras 14ff.


rd ed 2011) 16; Port Elizabeth Municipality v Various

Occupiers 2005 (1) SA 217 (CC).


205

regulation of property.95 This implies that individual interests are subject to controls,

regulations, restrictions, levies, deprivations, and changes that promote or protect

legitimate public interests.96 The presence of regulation sometimes has serious and

negative effects on property owners but compensation is not generally given for

these kinds of infringements.97 Accordingly, the overall effect of section 25 is that the

protection of property as an individual right is not absolute but subject to limitations

imposed on the strength of societal considerations, which may include the necessity

for granting non-owners access rights to land.98

The decision in Port Elizabeth Municipality v Various Occupiers underscores

the fact that the protection of existing private law-based relations to property is not

the primary purpose of section 25.99 Instead, this section is aimed at achieving social

transformation, in accordance with constitutional values such as human dignity,

equality and freedom.100 In light of section 25, the government is under an obligation

to pursue land and other reforms, some of which involve limitations on the

landowner’s right to exclude. The constitutional property clause accommodates and

authorises transformative and regulatory measures in the property regime that will

have an impact on the landowner’s right to exclude. It is therefore necessary to

95


ed 2011) 91.

96 91.

97 91.

98 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First

National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 para 49-50; Port

Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 16; Reflect-All 1025 CC and

Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government, and Another

2009 (6) SA 391 (CC) para 33. See also Van der Walt AJ “Constitutional property law” (2009) 3 Juta’s

Quarterly Review of South African Law para 2.2.

99 2005 (1) SA 217 (CC) paras 16-17; Badenhorst PJ, Pienaar JM & Mostert H Silberberg and

Schoeman’s The law of property (5th ed 2006) 581.

100 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) paras 15-16.


206

ascertain whether these limitations of the right to exclude are in compliance with the

requirements of section 25(1). The Constitutional Court outlined a methodology for

this process in its FNB decision.

4 3 3 The FNB methodology

The FNB decision prescribed a methodology, which proposes that all limitations of

property rights will be regarded as deprivations and tested against the requirements

of section 25(1) of the Constitution. The methodology entails a seven-stage inquiry

that is set out as follows:

“(a) Does that which is taken away from [the property holder] by the operation of the law in question] amount to ‘property’ for purposes of section 25?

(b) [If yes,] Has there been a deprivation of such property [by the organ of state involved]?

(c) If there has, is such deprivation consistent with the provisions of section 25(1)?

(d) If not, is such deprivation justified under section 36 of the Constitution?

(e) If it is, does it amount to expropriation for purpose of section 25(2)?

(f) If so, does the deprivation comply with the requirements of section 25(2)(a) and (b)?

(g) If not, is the expropriation justified under section 36?”101

The first question is whether there was an arbitrary deprivation of property. The

enquiry begins with three threshold questions, namely whether the applicant is a

beneficiary entitled to protection under section 25; whether the affected interest is

101

Roux T “Property” in Woolman S, Roux T & Bishop M (eds) Constitutional law of South Africa

volume 3 (2nd

ed OS 2003) ch 46 1-37 3 list these steps in accordance with the questions formulated

in First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First

National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 46.


207

property; and whether the property interest was infringed.102 If there was an arbitrary

deprivation of property, the second question is whether that deprivation is justifiable

under section 36(1). If the arbitrary deprivation is not justifiable, the deprivation is

unconstitutional and the matter ends there. If the deprivation complies with section

25(1) requirements or is arbitrary but reasonable and justifiable under section 36(1),

the next question is whether the deprivation amounts to an expropriation. If the

deprivation amounts to expropriation, it must comply with section 25 (2) and (3). If it

complies with section 25 (2) and (3), the expropriation is legitimate and valid.

However, if the deprivation amounts to expropriation and does not satisfy section 25

(2) and (3) requirements, the expropriation could be justified under section 36(1). If

the expropriation is justified, it is valid but if it cannot be justified, it is invalid.

Any property dispute based on section 25 would generally proceed according to

the FNB methodology. In this section, I look at the different instances in which the

right to exclude is limited, taking into consideration the steps set out in the FNB

decision, to determine whether the limitations are valid in terms of section 25. The

methodology introduced in FNB proposes that all limitations of property will be

regarded as deprivation and tested against the requirements of section 25(1) first

before the next question, whether a particular limitation also constitutes expropriation

in line with section 25(2). For this reason, I first focus on the non-arbitrariness test

(section 25(1)) and thereafter (if necessary) I consider section 25(2) pertaining to

expropriation.

102


ed 2011) 75. Roux T “Property” in Woolman S,

Roux T & Bishop M (eds) Constitutional law of South Africa volume 3 (2nd

ed OS 2003) ch 46 1-37 2-5

indicates that these questions are likely to be “sucked into” the arbitrariness test, namely whether the

deprivation is arbitrary.


208

In the subsequent sections, I first explain how the limitation of the right to

exclude amounts to a deprivation.103 Secondly, I investigate whether the limitation of

the right to exclude (the deprivation in question) satisfies the requirements of section

25(1), namely the law of general application104 and the non-arbitrariness test.105 In

the final section, I explain why the deprivation of the right to exclude probably does

not, in the South African context, amount to an expropriation that needs to satisfy

section 25 (2) and (3) requirements.106

Thus far, the dissertation has referred to the phrase “limitation of the

landowner’s right to exclude” to denote the fact that the right is restricted by the

measure in question. In section 25 the phrase “limitation of property” has a different,

much more technical meaning in that not every deprivation amounts to a limitation in

this sense, but only deprivation that does not comply with the requirements in section

25(1) (that is, arbitrary deprivation). The meaning of the phrase “limitation of the

landowner’s right to exclude” is therefore closer to deprivation in section 25(1). The

deprivation needs justification when it is arbitrary or disproportionate.

4 3 4 Deprivation: section 25(1)

The FNB decision attached a broad interpretation to the term “deprivation”,

describing it as “any interference with the use, enjoyment or exploitation of private

property”.107 This broad interpretation denotes that deprivation encompasses all

103

See section 4 3 4 below.

104 See section 4 3 5 below.

105 See sections 4 3 5 and 4 3 6 below.

106 See section 4 3 7 below.


National Bank of SA Ltd t/a Wesbank Minister of Finance 2002 (4) SA 768 (CC) para 57.


209

state interferences with property, while expropriation is a narrower sub-category of

deprivation.108 In Mkontwana v Nelson Mandela Metropolitan Municipality and

Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights

Action Campaign and Others v Member of the Executive Council for Local

Government and Housing, Gauteng and Others (Mkontwana) the Constitutional

Court apparently restricted the interpretation of deprivation by stating that the

question whether there has been a deprivation depends on the extent of the

interference.109 According to the court, a substantial interference that goes beyond

the normal restrictions on property in an open and democratic society would amount

to deprivation.110 In Reflect-All 1025 CC and Others v MEC for Public Transport,

Roads and Works, Gauteng Provincial Government, and Another (Reflect-All)111 and

Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation (Pty) Ltd

and Others (Offit)112 the Constitutional Court, although not expressly, seems to have

followed the wider FNB approach rather than the narrow Mkontwana approach to the

definition of deprivation.113 It can be assumed, in view of the FNB approach, that a

108


National Bank of SA Ltd t/a Wesbank Minister of Finance 2002 (4) SA 768 (CC) para 57. See also


ed 2011) 203-204.

109 2005 (1) SA 530 (CC) para 32.

110 Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v Buffalo

City Municipality and Others; Transfer Rights Action Campaign and Others v Member of the Executive

Council for Local Government and Housing, Gauteng and Others 2005 (1) SA 530 (CC) para 32. See

also Van der Walt AJ Constitutional property law (3rd

ed 2011) 203-204. Van der Walt AJ “Retreating

from the FNB arbitrariness test already? Mkontwana v Nelson Mandela Metropolitan Municipality;

Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v MEC for Local Government and

Housing, Gauteng” (2005) 122 South African Law Journal 75-89 criticises the definition of deprivation

in Mkontwana.

111 2009 (6) SA 391 (CC).

112 2011 (1) SA 293 (CC).


rd ed 2011) 206-209.


210

deprivation should include all but the legally irrelevant de minimis interferences with

property.114 A valid deprivation therefore entails any properly authorised and fairly

imposed regulatory limitation on the use, enjoyment, exploitation or disposal of

property, to protect and promote public health and safety or in pursuit of other

legitimate public purposes, without compensation.115

Most of the instances where the right to exclude is limited by operation of law

discussed in Chapter 3 constitute deprivations of the landowner’s right to exclude in

this sense. An exception is the cases discussed in Chapter 3 where the right to

exclude is limited directly by a non-property constitutional right such as life or dignity,

without the mediation of implementing legislation. In those cases the right to exclude

is restricted constitutionally and directly, resulting in an ex ante truncated right that

never included the ability or entitlement to effect the relevant exclusion, because no

principle or entitlement can exist that directly contradicts a constitutional right or

provision. The limitation of the right to exclude in these cases is ex ante and

therefore no deprivation in the sense of section 25(1) takes place.

Those instances where the right to exclude is limited by a non-property

constitutional right such as equality, on the basis of dedicated legislation, do bring

about a deprivation of property in the sense of section 25(1). The legislation

involved, such as PEPUDA and US public accommodations laws, determine the

limits imposed on the right to exclude to protect the right to equality and non-

discrimination. This statutory deprivation is subject to section 25(1) analysis.

114


ed 2011) 209 argues that as a definitional matter,

the approach in the FNB decision must be followed and any interference must be subject to the

logical qualification of the de minimis principle.


rd ed 2011) 212.


211

All other legislation116 that gives effect to non-property constitutional rights like

freedom of speech, the right to strike and picket, freedom of movement or secure

tenure limit the landowner’s right to exclude in a similar way. Legislation117 that is not

directly intended to give effect to a particular constitutional right but that pursues

some other valid and legitimate statutory goal also limit the landowner’s right to

exclude in a similar way. These laws prescribe regulatory measures that set out how

and in what instances the right to exclude is limited for different purposes. The

limitations that result from these laws qualify as deprivations of the right to exclude.

In the third instance, the common law principles regarding non-consensual

access to another person’s land limit the right to exclude. When a court order

enforces a right of way of necessity, without the consent of the owner of the servient

tenement, and when a court decides to leave an encroachment intact against

payment of compensation, these two outcomes amount to a forced transfer of some

of the landowner’s property rights, in particular the right to exclude as far as it

concerns the relevant portion of the land. When these limitations are enforced in

terms of the common law the result is once again a limitation of the right to exclude

that qualifies as a deprivation of the right to exclude.

In all instances where the right to exclude is limited without the consent of the

landowner and against his will, the result is a deprivation of property in the form of

116

For example the Labour Relations Act 66 of 1995; the National Labor Relations Act of 1935 (USA);

the Extension of Security of Tenure Act 62 of 1997; the Prevention of Illegal Eviction from and

Unlawful Occupation of Land Act 19 of 1998.

117 Such as the Value Added Tax Act 89 of 1991; Income Tax Act 58 of 1962; Investigation of Serious

Economic Offences Act 117 of 1991; Criminal Procedure Act 51 of 1977; Prevention of Organised

Crime Act 121 of 1998; Sectional Titles Act 95 of 1986; Sectional Titles Scheme Management Act 8 of

2011; Countryside and Rights of Way Act 2000 (UK); Land Reform (Scotland) Act 2003; Access to

Neighbouring Land Act 1992 (UK); Party Wall etc Act 1996 (UK).


212

the right to exclude. The next question is whether the limitation constitutes arbitrary

deprivation of the landowner’s right to exclude non-owners from his property.

4 3 5 The section 25(1) analysis

Section 25(1) is the point of departure for determining whether a limitation of the right

to exclude might be the object of a constitutional property challenge. In terms of

section 25(1), a deprivation must first of all be in terms of law of general application

and secondly the law may not permit arbitrary deprivation of property. This implies

that even when the deprivation is authorised by law of general application, namely

legislation or the common law, it would be unconstitutional if it does not comply with

the non-arbitrariness118 requirement in section 25(1).

The first requirement in terms of section 25(1) insists that a deprivation must be

authorised by “law of general application” for it to be valid. The first enquiry in terms

of this requirement should be whether the deprivation is authorised by a law that is

formally valid, in the sense that it was properly enacted and promulgated.119 Section

25(1) refers to “law of general application” as opposed to “a law of general

application” to ensure that the regulatory deprivation of property may also be

authorised by rules of common and customary law.120 The authorising law must be

generally and equally applicable to ensure equal treatment.121 Accordingly, a law that

provides for deprivation and singles out a particular individual or group of individuals

118

The non-arbitrariness test is explained below.


rd ed 2011) 232, citing Woolman S & Botha H

“Limitation” in Woolman S, Roux T & Bishop M (eds) Constitutional law of South Africa volume 2 (2nd

ed OS 2006) ch 34 1-136 51-52.


rd ed 2011) 234.

121 232.


213

in a discriminatory fashion will not comply with the law of general application

requirement.122

The fact that section 25(1) requires “law of general application” implies that the

deprivation enquiry in any constitutional property dispute should not focus on state,

administrative, judicial or private action that effected the deprivation.123 The validity

of a deprivation depends on law that authorises the particular action.124

It is generally accepted that law of general application includes legislation,

regulations, principles of common law, and rules of court.125 As was explained in

Chapter 3 above, the relevant limitations of the owner’s right to exclude, and

therefore the law of general application is, depending on the context, either

legislation or common law. These sources of law provide regulatory measures and

principles that prevent the landowner from exercising his right to exclude.

Some legislation provides regulatory measures that limit the right to exclude so

as to protect and enforce non-owners’ non-property constitutional rights, while other

statutes do so in pursuit of other legitimate statutory, regulatory or policy aims and

objectives. The common law principles that regulate the creation and enforcement of

a right of way of necessity constitute law of general application.126 Similarly, in

122


ed 2011) 233.

123 235.

124 235.


rd ed 2011) 232-237; Woolman S & Botha H

“Limitation” in Woolman S, Roux T & Bishop M (eds) Constitutional law of South Africa volume 2 (2nd

ed OS 2006) ch 34 1-136 51-53; Roux T “Property” in Woolman S, Roux T & Bishop M (eds)

Constitutional law of South Africa volume 3 (2nd

ed OS 2003) ch 46 1-37 21.


rd ed 2011) 234; Raphulu TN Right of way of

necessity: A constitutional analysis (2013) unpublished LLM thesis Stellenbosch University Chapter 4,

section 4 3 4.


214

encroachment cases the law of general application is the common law.127 The

common law, as developed in case law, provides that in certain instances a court

may enforce a right of way of necessity or may deviate from the default remedy of

removal and instead award compensation in encroachment cases.128 Therefore,

legislation or common law that limits the right to exclude constitutes law of general

application for purposes of section 25(1). The authorising law in a particular case

validates the limitation imposed on the right to exclude.

The second requirement is that the relevant law of general application may not

permit arbitrary deprivation of property.129 There are two criteria, in terms of FNB,

that determine whether a deprivation is arbitrary.130 A deprivation of property will be

arbitrary if there is insufficient reason for the deprivation (substantive arbitrariness) or

if the deprivation is procedurally unfair (procedural arbitrariness).131 In FNB the court

specifically focused on the substantive arbitrariness requirement and did not

127

Du Plessis v De Klerk 1996 (3) SA 850 (CC) 876, 915; S v Thebus 2003 (6) SA 505 (CC) paras

64-65 provide authority that the common law qualify as law of general application. See also Boss

Foods CC v Ingo Rehders Properties and Another [2014] ZAGPJHC 236 (26 May 2014); Boggenpoel

ZT “The discretion of courts in encroachment disputes [discussion of Phillips v South African National

Parks Board (4035/07) [2010] ZAECGHC 27 (22 April 2010)]” (2012) 23 Stellenbosch Law Review

252-264 260.

128 With regard to encroachments, see Boss Foods CC v Ingo Rehders Properties and Another [2014]

ZAGPJHC 236 (26 May 2014) para 57. In Boss Foods, the court pointed out that the common law is

the law of general application and the current common law position that allows for the discretion to

leave the encroachment against compensation is in compliance with section 25(1) of the Constitution.

See also Boggenpoel ZT “Compulsory transfer of encroached-upon land: A constitutional analysis”

(2013) 76 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 313-326 321.

129 Section 25(1) of the Constitution of the Republic of South Africa, 1996.


National Bank of SA Ltd t/a Wesbank Minister of Finance 2002 (4) SA 768 (CC) para 100.


National Bank of SA Ltd t/a Wesbank Minister of Finance 2002 (4) SA 768 (CC) para 100. See also


ed 2011) 245.


215

extensively discuss the test for procedural arbitrariness.132 In Mkontwana and

Reflect-All the court merely described procedural fairness as a flexible concept that

can be determined with reference to all the circumstances.133 However, in National

Credit Regulator v Opperman (Opperman)134 the court explained that a deprivation

of property that is effected in terms of legislation will be procedurally arbitrary if a

court adjudicates a dispute and makes an order without being allowed to exercise a

discretion that takes into account what is just and equitable in the particular case.135

Therefore, a deprivation of the landowner’s right to exclude would be procedurally

unfair if the law of general application in a particular case does not provide the court

with a discretion based on justice and equity. The question of procedural

arbitrariness would probably not arise in cases where the right to exclude others

from private land is limited by a court order based on the common law. The court

deciding whether to limit the right according to common law principles would take

into account all the relevant factors that would exclude procedural arbitrariness.

However, when the deprivation results from a court order based on legislation will

depend on the question whether the legislation leaves the court the necessary

discretionary space, as the Opperman decision shows.

In terms of the second criterion of the non-arbitrariness requirement, a

deprivation is arbitrary and in conflict with section 25(1) of the Constitution if the law

132

Van der Walt AJ “Procedurally arbitrary deprivation of property” (2012) 23 Stellenbosch Law

Review 88-94 88.

133 Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v Buffalo

City Municipality and Others; Transfer Rights Action Campaign and Others v Member of the Executive

Council for Local Government and Housing, Gauteng and Others 2005 (1) SA 530 (CC) para 65;

Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial

Government, and Another 2009 (6) SA 391 (CC) para 40-47.

134 2013 (2) SA 1 (CC).

135 National Credit Regulator v Opperman 2013 (2) SA 1 (CC) para 69.


216

in question (in terms of which the deprivation is effected) does not provide sufficient

reason for the deprivation.136 In FNB the Constitutional Court described how

“sufficient reason” is to be established, namely that there must be an evaluation of

the relationship between the deprivation in question and the purpose of the law in

question.137 To achieve this, the court explained that “a complexity of relationships

has to be considered”.138 These include the relationship between the purpose for the

deprivation and the person whose property is affected by the deprivation;139 the

relationship between the purpose of the deprivation, and the nature of the property;

and the extent of the deprivation.140 In other words, there must be a sufficient nexus

between the deprivation in question (the means employed) and the reasons for the

deprivation (the ends sought to be achieved).141 With regard to the extent of the

deprivation, the court held that the purpose of the deprivation must be more

compelling when the deprivation in question concerns ownership of immovable

property and corporeal movable property rather than when it concerns a lesser

property right, and when all rather than just some of the entitlements of ownership

are embraced by the deprivation.142 In addition, the court held that the substantive


National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 100.

137 Para 100(a).

138 Para 100(b).

139 Para 100(c).


National Bank of SA Ltd t/a Wesbank Minister of Finance 2002 (4) SA 768 (CC) para 100(d). See also

Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial

Government, and Another 2009 (6) SA 391 (CC) para 49.


National Bank of SA Ltd t/a Wesbank Minister of Finance 2002 (4) SA 768 (CC) para 100(a). See also


ed 2011) 245.


National Bank of SA Ltd t/a Wesbank Minister of Finance 2002 (4) SA 768 (CC) para 100 (e), (f).


217

arbitrariness test is contextual. The arbitrariness test may vary between mere

rationality and something closer to the proportionality test in section 36(1) of the

Constitution.143 Accordingly, establishing “sufficient reason” is context-based.144 In

each particular case, depending on the nature of the property and the extent of the

deprivation, a court has the discretion whether to apply a thin or a thick test.145

According to these guidelines, the non-arbitrariness test for law that deprives a

landowner of the right to exclude should generally speaking not be extremely strict

because it concerns just one entitlement of ownership (exclusivity), but at the same

time the test should not be meaningless either because it concerns ownership of

land.

The first element of the non-arbitrariness provision ensures that regulatory

deprivation is rationally connected to some legitimate government purpose.146 The

second element is that any law that authorises the deprivation must establish

sufficient reason for the deprivation.147 In this sense, the deprivation should not only

be rationally linked to a legitimate government purpose, but should also be justified

in the sense of establishing a proportionate balance between means and ends.148

143


National Bank of SA Ltd t/a Wesbank Minister of Finance 2002 (4) SA 768 (CC) para 100(g). See also


ed 2011) 246.


National Bank of SA Ltd t/a Wesbank Minister of Finance 2002 (4) SA 768 (CC) para 100(h).


rd ed 2011) 246.

146 237.

147 238.

148 238.


218

4 3 6 Application of the substantive non-arbitrariness test

The law that limits the owner’s right to exclude may not allow a deprivation that is

arbitrary. In terms of the FNB decision, a deprivation would be arbitrary if there is

insufficient reason for it. The first leg of the non-arbitrariness test questions whether

there is sufficient reason for the limitation. The second leg involves making an

assessment based on proportionality on an individual level. In this regard, courts

should engage in a “nuanced and context-sensitive” form of balancing when

determining the impact of a particular deprivation.149

As indicated in section 4 3 2 above, the constitutional property clause aims to

advance the public interest in relation to property.150 In Reflect-All the Constitutional

Court held that property rights are determined and afforded by law and can be

limited to facilitate the achievement of important social purposes.151 Therefore, the

legitimacy of the deprivation of the right to exclude must be considered in view of

what the property clause seeks to achieve.

In cases where direct non-property constitutional rights limit the right to

exclude, the section 25(1) justification is only relevant in the equality cases because

of the presence of legislation. PEPUDA and US public accommodations laws were

enacted to give effect to the right to equality and to guard against discriminatory

exclusion from land. The equality cases are subject to section 25(1) scrutiny. The

149

Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) paras 30-31; S v

Makwanyane and Another 1995 (3) SA 391 (CC) para 104; S v Manamela and Another (Director-

General of Justice Intervening) 2000 (3) SA 1 (CC) para 32.

150 The requirement that the deprivation in question must be for a public purpose or in the public

interest is not stated explicitly in section 25(1). This requirement is arguably implicit in the provision.

See Van der Walt AJ Constitutional property law (3rd

ed 2011) 225.

151 Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng

Provincial Government, and Another 2009 (6) SA 391 (CC) para 33.


219

public purpose sought to be achieved by these laws will prima facie constitute a valid

and legitimate reason for the deprivation of the right to exclude. The legislation does

not have a disproportionate effect because it applies generally. In this context, it is

likely that a rationality-type approach would be sufficient to justify the deprivation of

the right to exclude. Accordingly, the deprivation of the right to exclude that will result

from securing the right to equality through specifically enacted legislation, in a

particular instance, will generally not be arbitrary. The need to protect and promote

the achievement of fundamental human rights and important constitutional

imperatives provides sufficient ground to justify the deprivation in terms of section

25(1).

Other non-property constitutional rights like freedom of movement, freedom of

speech, right to strike and picket, and secure tenure are slightly different from the

right to equality because they can be balanced against property rights. When dealing

with legislation aimed at giving effect to these rights, the first question is whether the

reason for the limitation provides sufficient justification for the deprivation. The

Labour Relations Act 66 of 1995 is an example of legislation that limits the right to

exclude for the sake of giving effect to constitutionally protected labour rights.

Depending on the circumstances of each case, like in Growthpoint, the deprivation

should not be arbitrary if the legislation already has a built-in mechanism that

reasonably balances the competing rights. A deprivation might be arbitrary if a court

order goes beyond what is stipulated for in the Act or if the legislation does not allow

room for judicial discretion.

In Victoria and Alfred Waterfront the court recognised the tension between

property rights of landowners, in particular the right to exclude, and the affected

persons’ freedom of movement. The court did not apply the FNB methodology to


220

ascertain whether the limitation of the landowner’s right to exclude amounts to a

deprivation and whether the deprivation complies with the non-arbitrariness

requirement of section 25(1). In the context of the Victoria and Alfred Waterfront

case it need to be established whether the reason(s) for the court’s order to only

prohibit certain unlawful behaviour rather than a blanket entry prohibition would be

sufficient under the circumstances to justify the deprivation in question. According to

the FNB decision, the relationship between the means employed and the ends

sought to be achieved must be assessed. In Victoria and Alfred Waterfront the

means employed to protect the right of free movement in quasi-public places is not

to allow a blanket exclusion of the affected persons from the premises. The reason

why the court made this order was to protect the right of freedom of movement. The

purpose of the deprivation of the landowner’s right to exclude is to ensure that the

right to freedom of movement is not compromised. Furthermore, the nature of the

property and the circumstances are relevant factors to consider. The premises in this

case is quasi-public in nature because it is generally used for a purpose that is open

to the public. Members of the public are invited to visit the premises whether they

intend to conduct business there or not. The court took into account the location, size

and composition of the premises and held that it was for all practical purposes a

suburb of Cape Town and should be distinguished from an ordinary shop or

restaurant.152 The factors in FNB suggest that the court might take into account less

invasive means to achieve the intended outcome before considering invasive

measures. In Victoria and Alfred Waterfront the court stated that a prohibition of

152

Access to and right of admission to places of public accommodation like shops and restaurants is

more limited. Public accommodations laws or PEPUDA might prevent shops and restaurants owners

from excluding non-owners if the exclusion is based on discriminatory grounds. The right of freedom

of movement does not apply in these places because shops and restaurants owners can impose

blanket entry prohibitions provided they are not discriminatory.


221

unlawful behaviour instead of a blanket entry prohibition would optimise the

landowners’ property right (the right to exclude) and non-owners’ freedom of

movement on the premises. The court’s ruling allows landowners an effective way of

exercising reasonable control over unlawful behaviour on the premises and reflects

the fact that only one entitlement of ownership is affected by the deprivation, namely

the right to exclude. This suggests that ownership is not totally taken away from the

landowners; they can impose reasonable entry, use and conduct regulations on the

premises. Since the deprivation affects only one entitlement of ownership and since

the public purpose involved is significant, namely to protect and promote the right to

freedom of movement, the deprivation is not arbitrary.

A similar conclusion can be reached when regarding the Extension of Security

of Tenure Act 62 of 1997 (ESTA) provisions that limit the landowner’s right to

exclude. The reason for the deprivation can be inferred from the objectives of the

Act, to give effect to section 25(6) of the Constitution by promoting and protecting

occupiers’ non-property rights. ESTA has a legitimate government function to further

the public interest in the tenure reform programme. In Nhlabathi and Others v Fick153

the court came to the conclusion that even if section 6(2)(dA) of ESTA is in conflict

with section 25 of the Constitution, it does not constitute an arbitrary appropriation of

a grave.154 The following grounds were considered by the court as an indication that

depriving the landowner of some of his ownership entitlements is justified: the right

does not cause a major intrusion on the landowner’s property rights; the right is

subject to balancing with the landowner’s property rights and may sometimes be

subordinate to them; the right exists only where there is an established past practice

153

2003 (7) BCLR 806 (LCC) para 35.

154 Nhlabathi and Others v Fick 2003 (7) BCLR 806 (LCC) paras 33-35.


222

with regard to gravesites; and the right will enable occupiers to comply with religious

or cultural beliefs that form an important part of their security of tenure.155

Furthermore, taking into consideration the significance of the religious or cultural

beliefs of many occupiers regarding the burial of family members, the constitutional

mandate to provide occupiers with legally secure tenure would in most cases be

sufficient to justify the deprivation of some of the entitlements of ownership, in

particular the right to exclude.156 Accordingly, a limitation imposed on the right to

exclude even in circumstances that cause permanent or physical invasion of private

land (such as the appropriation of a gravesite) can be constitutionally justified, as

meant in section 36, if the limitation serves a legitimate, specific land reform

purpose.157 In this case, the deprivation of the right to exclude is justified in fulfilment

of the statutory recognition of the occupiers’ security of tenure in accordance with the

constitutional mandate.

The purpose of PIE is to give effect to the anti-eviction provision in section

26(3) of the Constitution. Unlike ESTA, PIE does not protect existing access rights or

create new ones but its anti-eviction regulatory measures limit the landowner’s right

to exclude. The decision in Port Elizabeth Municipality v Various Occupiers158 gave

an indication that statutory regulatory measures like PIE are meant to prevent

arbitrary evictions. This means that in land reform legislation that includes anti-

eviction regulation, the deprivation of the landowner’s right to exclude will be justified

155

Nhlabathi and Others v Fick 2003 (7) BCLR 806 (LCC) paras 32-35.

156 Nhlabathi and Others v Fick 2003 (7) BCLR 806 (LCC) para 31. See also Van der Walt AJ

“Property, social justice and citizenship: Property law in post-apartheid South Africa” (2008) 19

Stellenbosch Law Review 325-346 343; Van der Walt AJ Property in the margins (2009) 198.


rd ed 2011) 298.

158 2005 (1) SA 217 (CC).


223

by the constitutional anti-eviction imperative159 and the general transformative vision

of the Constitution. Anti-eviction regulation should satisfy the requirement for

proportionality when it affects all landowners more or less equally in that, for

example, all landowners are subject to the same costly and time-consuming eviction

procedures prescribed by PIE.160 However, eviction cases will often require

something closer to full proportionality review, for example when anti-eviction

measures practically deprive an individual landowner or a small group of landowners

completely of the possibility of obtaining an eviction order in instances where such

an order would normally have been granted.161 A good illustration on this point is

President of the Republic of South Africa and Another v Modderklip Boerdery (Pty)

Ltd and Others (Modderklip).162 In Modderklip the landowner was prevented from

executing an eviction order against unlawful occupiers because of the sheer number

of people involved and their personal circumstances.163 The deprivation brought

about by the practical impossibility of evicting the unlawful occupiers might be

arbitrary in the absence of compensation. According to the court an award of

constitutional compensation was the most appropriate remedy.164 Arguably, the

compensation was awarded to avoid unfair or disproportionate effects on the

individual landowner.165 The compensation award might only work when the delay in

159



rd ed 2011) 278.

161 278.

162 2005 (5) SA 3 (CC). In Modderklip the Constitutional Court upheld the constitutional and statutory

right of unlawful occupiers of land not to be evicted before alternative accommodation is provided.

163 President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd and Others

2005 (5) SA 3 (CC) paras 47-48.

164 Paras 55-59.


rd ed 2011) 278; Van der Walt AJ “The state’s duty to

protect property owners v the state’s duty to provide housing: Thoughts on the Modderklip case”

(2005) 21 South African Journal on Human Rights 144-161.


224

evicting the unlawful occupiers is overly long but temporary; if it is permanent and

therefore effectively impossible to evict, the deprivation might be arbitrary and cannot

be saved by a constitutional compensation award.166

With regard to deprivations that result from legislation not directly giving effect

to constitutional rights, it is important to establish whether there is sufficient reason

for the provision that limits the right to exclude to determine the impact it has on the

landowner. In cases where the landowner’s right to exclude is limited by search,

seizure and forfeiture of property in terms of an authorising law,167 the deprivation is

a result of the regulatory exercise of the state’s police power with the aim to achieve

one of its core functions, namely public health and safety. The legitimacy of the

deprivation must be evaluated in view of this purpose. Generally, legislation that

provides statutory access rights for purposes of search, seizure and forfeiture of

property has a legitimate regulatory purpose that is sufficient to justify the deprivation

of property rights, the right to exclude in particular.168 However, in most cases it may

still be relevant to consider the deprivation on a higher of level scrutiny to assess the

fairness of the deprivation on an individual basis.169

The management rules of sectional title schemes that are prescribed and

enforced by legislation170 may in some cases cause a deprivation of the right to

exclude. Generally, deprivation of the right to exclude would be constitutionally

166


ed 2011) 278-279.

167 See for example section 57D(1)(a)(i) of the Value Added Tax Act 89 of 1991; Section 74D(1)(a)(i)

of the Income Tax Act 58 of 1962; section 6 of the Investigation of Serious Economic Offences Act

117 of 1991; sections 21, 24 and 25 of the Criminal Procedure Act 51 of 1977; chapter 6 of the

Prevention of Organised Crime Act 121 of 1998.


rd ed 2011) 311-312.

169 228.

170 Sectional Titles Act 95 of 1986; Sectional Titles Schemes Management Act 8 of 2011.


225

permissible when the management rules are imposed in the interest of the property

community and when the rules comply with the requirements of the arbitrariness

test.171

A similar conclusion can be reached with reference to the legislation from

foreign jurisdictions that grant non-owners and other landowners access rights to

land. Although the legislation in question172 deprives the landowner of his right to

exclude, the deprivation, if tested against the requirements of section 25(1) of the

South African Constitution, might not be arbitrary because the right to roam

legislation was enacted for historical and social reasons aimed at restoring access

rights to land. The legislation also attempts to eliminate arbitrary effects by making

provision for reasonable access rights that are to be exercised within strict limits, in

part set out in statutory regulations and in part determined by the landowner.

Arguably, the two acts have a built-in mechanism that guards against

disproportionate effects. However, an arbitrary deprivation might ensue if non-

owners are allowed to exercise their right to roam in a way that goes beyond the

limits of the legislation and in the process interfere with the landowner’s privacy, use

and enjoyment of property as well as his land management interests. The application

of the non-arbitrariness test in beach access cases would not be different from the

right to roam cases, with the result that the deprivation might not be arbitrary in these

cases. Similarly, the deprivation arising from the access to neighbouring land

legislation173 might not be arbitrary insofar as it provides sufficient justification for the

171


172 Countryside and Rights of Way Act 2000 (CROW Act) (UK); Land Reform (Scotland) Act 2003

LRSA).

173 Access to Neighbouring Land Act 1992 (UK); Party Wall etc Act 1996 (UK).


226

deprivation, namely for public interest considerations and to promote a proper social

order, and provides mechanisms to prevent or minimise unfair outcomes.

Limitations of the right to exclude based on common law principles are mainly

justified by policy considerations. The outcome of a court order to enforce a right of

way of necessity and to leave the encroachment in place qualifies as a deprivation

for section 25(1) purposes and it is necessary to consider whether there are

sufficient reasons to prevent the deprivation from being arbitrary. In view of the case

law concerning the policy considerations in cases involving a right of way of

necessity,174 it is unlikely that a court order enforcing a right way of necessity would

cause an arbitrary deprivation of the right to exclude. The common law principles

relating to the right of way of necessity seek to connect a piece of landlocked land to

the public road to ensure the efficient utilisation of land and also because of practical

need.175 These policy considerations usually constitute sufficient reason to justify a

deprivation. Generally, a grant of a right of way of necessity is justified when the

dominant tenement owner proves necessity, when a right of way does not impose

extensive burdens on the servient land that destroy all his ownership rights, and

when the dominant tenement owner pays just compensation. Moreover, Raphulu

argues that the intervention of the courts, acting with the authority of the common

law, is the most appropriate mechanism to solve the problem of landlocked land in

cases where a dominant owner cannot acquire an ordinary servitude of way by

contract.176 The court exercises a discretion to either grant a right of way of necessity

or not, taking into account all the relevant factors, the context and effect that the

174

See section 4 3 2 above.

175 See section 4 3 2 above.

176 Raphulu TN Right of way of necessity: A constitutional analysis (2013) unpublished LLM thesis



227

discretion will have on the one party or the other one. The deprivation resulting from

the granting of a right of way of necessity should comply with the requirements of the

non-arbitrariness test if the servitude is granted by a court order after considering

and applying common law requirements regarding the right of way of necessity.177

So if the court follows the requirements and apply them properly, the outcome in a

particular case should not be arbitrary because the court’s discretion ensures

proportionality although it might affect the property owner. The possibility of

arbitrariness is further diminished if compensation is granted to the servient

tenement owner.

In the context of encroachment, the question is whether the reason for

awarding compensation instead of removal is sufficient in the circumstances to justify

the deprivation of the right to exclude. Boggenpoel argues that the substantive

arbitrariness requirement must be complied with by considering whether there is

sufficient reason for the institutional shift from the common law remedy of removal to

an award of compensation.178 The case law shows that the shift away from the

common law remedy aims to ensure a more just and equitable outcome in suitable

cases. Therefore, the justification for limiting the right to exclude centres on

considerations of pragmatism, policy and individual justice, which may well be

sufficient to cause a deviation from the common law remedy that protects the

landowner’s right to exclude. In Boss Foods CC v Ingo Rehders Properties and

Another179 the court held that the weighing of the relevant factors by a court will

177

Raphulu TN Right of way of necessity: A constitutional analysis (2013) unpublished LLM thesis


178 Boggenpoel ZT “Compulsory transfer of encroached-upon land: A constitutional analysis” (2013)

76 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 313-326 321.

179 [2014] ZAGPJHC 236 (26 May 2014) para 57.


228

serve as the mode of protection against arbitrary deprivation of property. Boggenpoel

explains that the exercise of the court’s discretion in terms of the common law to

either favour demolition or compensation ensures that the deprivation will not per se

result in arbitrary deprivation of property.180 However, this conclusion does not apply

if a court decides to leave the encroachment intact and further orders the affected

landowner to register a servitude in favour of the encroacher, because such an order

might not comply with the requirements of section 25(1). Unlike the servitude of right

of way of necessity, which is also created against the will of a landowner and is

authorised by the common law, the servitude created by court order in Roseveare

does not have a clear source of authority in the common law, which could be

problematic on a constitutional level.181 The deprivation resulting from the court’s

order to register a servitude in encroachment cases is likely to be unlawful on the

basis that it is not clear that the common law authorises such an order.182

Boggenpoel adds that the deprivation may also be unconstitutional because it does

not comply with the arbitrariness requirement in section 25(1)183 because in

Roseveare the court does not provide a clear or specific, separate justification for the

creation of a servitude in favour of the encroacher.184

180

Boggenpoel ZT “Property” 2014 (1) Juta’s Quarterly Review of South African Law para 2 2 1 for a

detailed discussion of the Boss Foods decision.

181 Boggenpoel ZT “Creating a servitude to solve an encroachment dispute: A solution or creating

another problem?” (2013) 16 Potchefstroom Electronic Law Journal 455-486 472-473.

182 For a detailed discussion on this point, see Boggenpoel ZT “Creating a servitude to solve an

encroachment dispute: A solution or creating another problem?” (2013) 16 Potchefstroom Electronic

Law Journal 455-486 475.

183 476.

184 477.


229

4 3 7 Expropriation: Section 25(2)

Generally, both deprivation and expropriation involve some kind of state interference

with property. However, deprivation does not have to involve a state acquisition of

property and is usually not subject to compensation, while expropriation involves

state acquisition of the property that requires compensation.185 Expropriation is

usually defined in contrast with deprivation, which is seen as a less intrusive

limitation of property that generally occurs when the state regulates the use and

enjoyment of property in the interest of the public, and compensation is not generally

required.186 According to the FNB test, the question whether deprivation of property

amounts to an expropriation must be considered once it is determined that the

deprivation is not arbitrary or can be justified in terms of section 36(1).

Having established that a particular deprivation of the right to exclude complies

with section 25(1) of the Constitution, it is necessary to consider whether it amounts

to expropriation. Section 25(2) provides three requirements for a valid expropriation,

namely that expropriation of property must take place in terms of law of general

application, be for a public purpose or in the public interest and be subject to

compensation. Section 25(3) further specifies that compensation must be just and

equitable and sets out certain factors that could be considered in determining the

amount. In view of the FNB methodology the law of general application issue is likely

to be dealt with conclusively during the deprivation analysis stage and as a result, it

will not be necessary to raise it again if the issue should proceed to the expropriation

analysis stage.187 If the section 25(2) law of general application requirement should

come up, the issues should be similar to those that apply in the case of section

185


ed 2011) 191-196.

186 335.

187 452-453.


230

25(1),188 even though the law of general application for expropriation (section 25(2))

differs from the section 25(1) law of general application in two ways. Firstly, common

law does not feature as law of general application in expropriation cases because

there is no common law authority for expropriation in South African law.189 Secondly,

in the expropriation context the authorising law has to authorise a very particular kind

of state action, namely expropriation of private property for a public purpose or in the

public interest.190 This means that expropriation rests on the basis of legislation that

authorises a specific kind of state action to serve a particular public purpose or

interest.

In US law, limitations imposed on the right to exclude have sometimes been

treated as takings191 for specific reasons that are worth mentioning.192 The US

188


ed 2011) 453.

189 See Van der Walt AJ Constitutional property law (3

rd ed 2011) 346, 453-454, citing Gildenhuys A

Onteieningsreg (2nd

ed 2001) 93. All expropriations are effected in terms of legislation, most notably

the Expropriation Act 63 of 1975. The common law principles applicable in the context of non-

consensual access rights (the right of way of necessity and encroachment cases) effect a forced

transfer of property rights that result in limiting the landowner’s right to exclude, but this cannot be

characterised as expropriation. The outcome in the right of way of necessity and encroachment cases

cannot be described as expropriation because of the absence of legislation to authorise expropriation

in both cases. The common law principles in the right of way of necessity and encroachment cases

are intended to harmonise conflicting interest in private land other than to serve a public purpose or

the public interest through the compulsory acquisition of property. See Roux T “Property” in Cheadle

MH, Davis DM & Haysom NRL (eds) South African constitutional law: The Bill of Rights (2002) 429-

472 458 (with reference to footnote 144), (left out of the current Roux T & Davis D “Property” in

Cheadle MH, Davis DM & Haysom NRL (eds) South African constitutional law: The Bill of Rights (2nd

ed 2010) ch 20); Roux T “Property” in Woolman S, Roux T & Bishop M (eds) Constitutional law of

South Africa volume 3 (2nd

ed OS 2003) ch 46 1-37 33. Roux states that as far as South African law is

concerned, expropriation is a state action always carried out in terms of statutory authorisation. See

also Van der Walt AJ Constitutional property law (3rd

ed 2011) 453-454.


rd ed 2011) 454.

191 The US Constitution refers to expropriation as a “taking” of property. See Van der Walt AJ


ed 2011) 336-337.


231

courts’ takings decisions suggest that at least some governmental interferences with

the landowner’s right to exclude are likely to be treated as takings.193 In Kaiser Aetna

v United States194 the US Supreme Court held that requiring public access that limits

the right to exclude would amount to a taking of property without compensation in

violation of the Fifth Amendment. Furthermore, the court held that the right to

exclude, which is seen as a universally held fundamental element of property rights,

falls within the category of interests that the government cannot take without

compensation.195 The Kaiser Aetna decision was later applied in other cases dealing

with the landowner’s right to exclude. For instance, in Loretto v Teleprompter

Manhattan CATV196 the Supreme Court held that property owners could not be

required, without compensation, to allow cable companies to install wires and cable

boxes on their building. The court held that any permanent physical invasion, even if

it causes the smallest infringement of the landowner’s right to exclude, triggers a per

se taking, which merits compensation.197 In Nollan v California Coastal

192

The US Constitution has two clauses that protect property against illegitimate government

interferences. The Fourteenth Amendment to the US Constitution, under the due process clause,

provides that “no person shall … be deprived of life, liberty, or property without the due process of

law”. Additionally, the takings clause provides that “… nor shall private property be taken for public

use, without just compensation”. See the Fifth Amendment to the US Constitution. See also Mossoff A

“What is property? Putting the pieces back together” (2003) 45 Arizona Law Review 371-444 375;


193 Merrill TW “The landscape of constitutional property” (2000) 86 Virginia Law Review 885-1000

973.

194 444 US 164 (1979).

195 Kaiser Aetna v United States 444 US 164 (1979) 179-180.

196 Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982) 433.

197 Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982) 434-436. See also Alexander

GS The global debate over constitutional property: Lessons from American takings jurisprudence

(2006) 93.


232

Commission198 the Supreme Court ruled that a landowner could not be expected to

allow a public right of way over his land, as a condition for obtaining a building

permit, without payment of compensation. In Dolan v City of Tigard199 the court found

that a complete abrogation of the right to exclude with respect to a portion of land is

a taking, even though the portion in question is relatively trivial. These cases indicate

that the courts did not engage in a balancing of the interests of landowners and non-

owners, even though a balancing test would have benefited the public considering

that, in some cases, there was only a slight intrusion on the right to exclude.200

However, the decision in PruneYard Shopping Center v Robins201 suggests

otherwise. The court in this case held that the limitation of the right to exclude a

particular category of customers from a shopping centre was not a taking.202 The

court upheld a state constitutional requirement that owners of shopping centres who

have already invited the general public to their property should permit individuals to

exercise speech and petition rights. The court viewed the temporary invasion of

property as being more of a regulation of use of property than a taking. This is

because the owner of the shopping centre was free to adopt and enforce regulations

regarding the time, place and manner in which the activities of the petitioners would

be permissible. Seen in this light, the exercise of free speech and petition rights in

the shopping centre did not amount to an unconstitutional limitation of the right to

exclude.

198

483 US 825 (1987) 831.

199 Dolan v City of Tigard 512 US 374 (1994) 393. See also Nollan v California Coastal Commission

483 US 825 (1987) 831.

200 Anderson JL “Countryside access and environmental protection: An American view of Britain’s

right to roam” (2007) 9 Environmental Law Review 241-259 251-251.

201 447 US 77 (1980).

202 PruneYard Shopping Center v Robins 447 US 77 (1980).


233

US courts might react similarly (in the sense that any permanent physical

invasion is seen as a per se taking) to South African cases dealing with some

limitations of the landowner’s right to exclude. For example, in the Nhlabathi203 case

a US court would probably have awarded compensation for a forced transfer of

property that resulted in depriving the landowner of his property for the sake of land

reform objectives. The Nhlabathi decision suggests that expropriation without

compensation is possible and justifiable in certain circumstances but the court did

not decide whether the section in question did in fact amount to an expropriation.204

However, the circumstances of the Nhlabathi case led the court to decide that the

enforcement of section 6(2)(dA) of ESTA does not constitute a major intrusion on the

landowner’s property rights. The court decided that the provision in question was not

unconstitutional (in the sense that it did not authorise an arbitrary deprivation) and

that the statutory obligation imposed on the landowner to allow the appropriation of a

gravesite on his land without compensation was reasonable and justifiable in line

with section 36 of the Constitution.205

Similarly, the US courts would possibly award compensation in cases involving

the CROW Act and LRSA in terms of the Fifth Amendment takings grounds.206 The

203

Nhlabathi and Others v Fick [2003] All SA 323 (LCC).

204 Section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997. See Van der Walt AJ


2011) 507; Pienaar JM Land reform (2014) 422.

205 See Pienaar J & Mostert H “The balance between burial rights and landownership in South Africa:

Issues of content, nature and constitutionality” (2005) 122 South African Law Journal 633-660 645-

659 for a detailed discussion of the constitutional issues raised in the Nhlabathi case. See also

Pienaar JM Land reform (2014) 423.


Nebraska Law Review 739-818 815 discusses the possible reaction of the American courts to the

LRSA. See also Anderson JL “Countryside access and environmental protection: An American view

of Britain’s right to roam” (2007) 9 Environmental Law Review 241-259 246 with regard to the

reception of the CROW Act in the US.


234

two acts permit the right to roam on privately owned land, which presents a

significant deprivation of the landowner’s right to exclude, but without making

provision for compensation when such deprivation occurs.207 However, both acts

establish a fair balance between public access rights and the landowner’s property

rights, which balance effectively renders the acts constitutionally compliant. In light of

section 25 of the Constitution of South Africa, the courts would most likely react

differently and not consider the limitation of the right to exclude as a taking of

property (or an expropriation).

In conclusion, it should be noted that in the specific context of the South African

property clause it may well never be necessary to raise the expropriation issue or to

proceed to the section 25(2) stage of the FNB analysis unless the deprivation in

question (limiting the owner’s right to exclude) specifically arises from legislation

(since there is no common law authority for expropriation in South African law) that

explicitly or at least clearly and implicitly authorises expropriation of the affected

rights, for a public purpose or in the public interest, against compensation.

4 4 Conclusion

In Chapter 2 I discuss one type of justification, namely theoretical and doctrinal

justifications for limiting a landowner’s right to exclude on a normative basis,

departing from the assumption that ownership is unlimited in principle and that every

limitation requires such justification. That chapter shows that the foundations for this

assumption are weak. The aim of this chapter is to consider justificatory arguments

207

Anderson JL “Countryside access and environmental protection: An American view of Britain’s

right to roam” (2007) 9 Environmental Law Review 241-259 246. See also Van der Walt AJ Property

in the margins (2009) 194-195.


235

of a different kind, assuming that ownership is not unlimited in principle, namely

justification for a specific limitation and section 25(1) justification for the effect that

the limitation has on a specific landowner. This chapter established that the

justifications for limiting the right to exclude depend on whether the limitation is

imposed directly by a non-property constitutional right; by legislation giving effect to a

non-property constitutional right; by legislation not specifically giving effect to a non-

property constitutional right; or by common law principles.

Constitutional limitations on the right to exclude others from private, public or

quasi-public land generally protect non-property constitutional rights like life, dignity

and equality. These non-property constitutional rights are generally unlimited and not

subject to regulation, which implies that when these rights are in conflict with a

property right (which is subject to limitation) the issue is not whether the limitation on

the right to exclude is justifiable or whether exclusion is at all allowed and justifiable

but that the right to exclude must simply give way to a direct constitutional right. At

least for life and dignity this is a direct constitutional limitation that brings about an ex

ante truncated property right and there is no deprivation in terms of section 25(1) or

limitation in terms of section 36(1) that requires any justification. It results from the

supremacy of the Constitution over any law or entitlement that conflicts with these

rights.

When courts deal with the conflict between the right to exclude and other non-

property constitutional rights such as freedom of speech, freedom of movement, right

to strike and picket and secure tenure, competing interests are weighed to determine

which outcome would be the most appropriate in a particular case. The above

mentioned rights are enforced and regulated by legislation. Legislation giving effect

to a non-property constitutional right and legislation not specifically giving effect to a


236

constitutional right can limit the right to exclude. In certain instances the balancing of

interests already prescribed by the legislature when drafting legislation enacted to

give effect to the constitutional right in question, assists the courts in the weighing

process. Protection of the constitutionally and statutorily protected non-property

rights, as well as other policy grounds and objectives, justifies the limitation placed

on the right to exclude.

The nature of justification here assumes that property rights are limited in

principle and that legitimate limitations may be expected. The justification process

considers whether there are reasons for the limitation and whether there is authority

for a specific limitation in a specific case. The legislation in question in a specific

case is the authority for the limitation and it shows why the right to exclude should be

limited, usually it is for a valid reason.

Justification for a specific limitation also features in the private law (common

law) context where the right to exclude is limited for policy reasons. The right to

exclude is limited when a right of way of necessity is enforced by a court order or

when a court exercises its discretion in favour of leaving an encroachment in place.

In these instances the courts weigh the interests of the affected landowner and the

encroacher (in encroachment cases) and the interests of the servient tenement

owner against public policy (in the right of way of necessity cases) to determine the

appropriate outcome. In doing so, the courts limit the right to exclude on policy

reasons such as the efficient use of land or on the basis of a balance of prejudice.

This means that in property disputes the protection of the right to exclude is not a

default outcome. Rather, after the consideration of all relevant factors in a particular

case, the courts may limit the right to exclude if it is necessary and justifiable.


237

Insofar as the limitations on the right to exclude are justified on the basis of

authority and reason for the limitation, it becomes necessary to look at section 25 to

ascertain whether the effect of the limitations are constitutionally valid and legitimate.

The section 25(1) analysis, questions whether the limitations imposed on the right to

exclude comply with section 25(1) of the Constitution. In instances where the law

imposes limitations on the right to exclude, the outcome is a deprivation of the right

to exclude.208 The deprivation is authorised by law of general application for a valid

public purpose. The important part of the section 25(1) analysis is to determine

whether the deprivation of the right to exclude has a non-arbitrary effect on individual

landowners. The extent of the deprivation is case-sensitive. If there is a rational

connection between the means employed and the ends sought by the deprivation,

which guards against disproportionate effects, the deprivation that results from

limiting the right to exclude is mostly going to be justifiable and would generally

amount to non-arbitrary deprivation. In other words, the deprivation of the right to

exclude complies with section 25(1) of the Constitution.

208

The deprivation outcome does not apply in cases involving a direct clash between the right to

exclude and non-property constitutional rights such as right to life and dignity, with the exception of

the right to equality because it is regulated by legislation. See sections 4 2 1 and 4 3 4 above.


238

Chapter 5:

Conclusion

5 1 Introduction

The aim of this dissertation is to consider, from a constitutional perspective, the

absoluteness assumption and the centrality of the right to exclude. An overview of

the research problem in the introductory chapter indicates the complex relationship

between the right to exclude and access rights.1 The right to exclude is commonly

perceived as the core entitlement of ownership that should be protected and strongly

upheld unless it is limited justifiably. Sometimes the right to exclude is limited when it

clashes with non-property constitutional or statutory rights to protect these rights,

and when their enforcement is dependent on access to land. This raises significant

questions relating to the role, scope and the supposed primacy of the right to

exclude, when and how it is limited by law, and whether the limitation is theoretically,

doctrinally and constitutionally justifiable.

The underlying assumption throughout this dissertation is that it is misleading to

regard ownership and exclusion as absolute rights. The notion of absolute ownership

can be understood in different ways. Ownership can be seen as absolute in the

sense that it is the most complete real right; as an abstract right; as an individual

right; and as an unlimited right in principle, although subject to limitations. Viewing

ownership as absolute in the abstract sense means that the right to exclude is not

limited by considerations of justice or context. Absoluteness in the sense that

ownership is unlimited in principle although it is subject to limitation is often

1 See Chapter 1 above.


239

understood to mean that the right to exclude is unlimited, except in exceptional

cases where limitations are normatively justified. However, case law, doctrine and

theory associated with these meanings do not support the view that the right to

exclude is absolute in the strong sense. I assumed in Chapter 1 that access rights

imposed by law in fact limit the right to exclude, and that these limitations are often

constitutionally justified.

This dissertation therefore considered the theoretical and doctrinal perspectives

on the existence and nature of limitations on the right to exclude; access rights that

in fact limit the right to exclude; and the justification for those limitations in a

constitutional context.2 Therefore, it is necessary to conclude this dissertation with a

discussion regarding the complexity of the relationship between exclusion and

access rights to determine whether the research question was answered and to

reflect on the relative nature of the right to exclude. This conclusion also explores

some of the implications of considering different origins of limitations and different

types of justification for limiting the right to exclude

5 2 Conclusions: The relative nature of the right to exclude

5 2 1 The idea of absolute ownership and exclusivity

Chapter 2 offers an overview of theoretical and doctrinal perspectives on limitations

that are imposed on the right to exclude. The point of departure was that the right to

exclude can be viewed in a strong-absolute sense. The chapter highlights a number

of theoretical considerations that do not support such a strong view of the right to

exclude. Firstly, moral property theories do not provide theoretical support for such a

strong notion of absolute ownership and exclusion that requires a moral justification

2 See Chapters 2, 3 and 4 above.


240

whenever any limitation is imposed on the right to exclude. This is because moral

property theorists such as Locke and Hegel do not discuss the issue of absoluteness

directly and the different readings of both theories (labour and first occupation) make

it controversial to support a strong, absolute view of the right to exclude.3 Secondly,

modern property theory does not provide support for the strong notion of absolute

ownership and exclusion either. Proponents of a strong exclusion theory tend to view

property through the lens of the right to exclude. Exclusion theorists therefore treat

limitations on ownership as exceptional, arguing that as a point of departure, the

right to exclude should be upheld and protected. Exclusion is seen as a simple keep-

off message. However, even when exclusion theorists see the right to exclude as the

most important, core, or essential property entitlement, that does not mean that it is

unlimited. The right to exclude can be limited, even if the limitations are viewed as

exceptional. The only outcome of this view is that any limitation must be proved

specifically; requires special justification; and might require compensation.4 In fact,

modern exclusion theorists describe the right to exclude as relative and accept

limitations for pragmatic reasons such as efficiency.5 Thirdly, there are theoretical

views that support a limited or qualified right to exclude. Exclusive use and

progressive property theorists agree that a landowner is presumed to have a right

that is free of limitations, but add that there is always a possibility that limitations

could be imposed, and these limitations are not seen as exceptional in the sense

that they are almost impossible.6 Some theories accept that limitations on the right to

3 In this regard, see Chapter 2 section 2 2 1 above.

4 See Chapter 2 section 2 2 2 above.

5 See Merrill and Smith, Chapter 2 section 2 2 2 above.

6 See Chapter 2 sections 2 2 3 and 2 2 4 above, with reference to the perspectives of exclusive use

theorists such as Katz, Mossoff, and Claeys; and progressive property theorists such as Alexander,

Peñalver, Underkuffler, and Singer.


241

exclude are not only possible but normal and relatively common.7 Progressive

property theorists take into account the fundamental human values and interests of

non-owners, and they do not simply prioritise the protection of the right to exclude.

Limitations on the right to exclude are therefore accepted readily, sometimes even

without compensation.

Exclusion, exclusive use and progressive property theorists acknowledge the

existence of limitations on property and on the right of exclusion in particular but they

have different views on the nature of the limitations. The exclusion theorists view

limitations as exceptions to the absolute-exclusion rule, while the exclusive use and

progressive property theorists view limitations as inherent to the property system.8

On the whole it cannot be said that property theory offers strong or unanimous

support for an approach that treats the right to exclude as an absolute entitlement,

even when it is regarded as a core or essential property right.

In Chapter 2 I further explained that the definition of ownership in modern South

African law has been influenced by pandectism in academic literature, where it is

often said that ownership is absolute in the sense that limitations are exceptional.9

This notion of ownership appears to support a strong view of absoluteness.

However, pandectism did not have such a strong effect in South African case law.

Courts normally adopt the pragmatic Roman-Dutch law notion that ownership is the

most complete real right that an owner can have with regard to property, but this

right can only be exercised within the limits of the law.10 The word “absolute” is

seldom used directly by the courts, except in a very specific context. When the

7 For a detailed discussion on these theories, see Chapter 2 section 2 2 4 above.

8 See in this regard Chapter 2 sections 2 2 2, 2 2 3 and 2 2 4 above.




242

courts use the word “absolute”, they mostly refer to the Roman-Dutch law notion that

ownership is either the most complete real right, distinguishing it from limited real

rights, or absolute in Bartolus’ sense that an owner can use his property in any way

that is not specifically prohibited by law. Accordingly, South African case law seems

to convey either that the owner holds the most comprehensive collection of

entitlements or that the evidentiary starting point is the presumption that ownership is

free of limitations, which have to be proved. The evidentiary starting point denotes

that mere proof of the existence of a limitation is required and not justification for the

limitation in a normative sense. This does not convey the theoretical idea of

absoluteness in the strong sense, and in fact comes closer to the exclusion

arguments of exclusive use and progressive property theorists. Furthermore, the

brief historical background on ownership shows that the South African legal doctrine

does not in fact support a strong argument in favour of absolute exclusivity.11

Consequently, ownership and the right to exclude allow for the existence of

limitations as a matter of course. The owner cannot do with his property as he

deems fit or exercise his right to exclude outside of the limits imposed by law. The

limitations imposed by law on the right to exclude are regarded as presumptively

secondary, but they are not seen as normatively exceptional. Therefore, absolute

ownership does not mean that the right to exclude can be exercised without

limitations or that ownership is unlimited prior to law or outside of the legal system.

At most, the initial presumption is against limitations until they are proven.

Consequently, it is not important to determine whether limitations are inherent

in ownership. The point is rather whether limitations on ownership are inherent in the

legal system in which it functions. The conclusion in Chapter 2 points out that the

11

Regarding the brief historical background on ownership, see Chapter 2 section 2 3 1 above.


243

theoretical and doctrinal perspectives on the limitation of the right to exclude point

towards a notion of ownership that functions within a legal system, which includes

property and of which limitations are an inherent part.12 Furthermore, theoretical and

doctrinal views show that justification for limitations has a specific meaning. In

particular, justification does not require normative grounds for the existence of every

limitation, because ownership and the right to exclude are not regarded as pre-

social, pre-legal or pre-constitutional rights. The limitations are not imposed on pre-

law rights; the right to exclude is limited within the legal system, and therefore the

normative question whether to limit it is taken (during the constitution- or statute-

writing process) before a particular dispute arises.

5 2 2 Limitations

The limits and content of property are determined by law and hence the strong

notion of absolute ownership and absolute exclusivity has no place in the

constitutional setting. The conclusion in Chapter 3 confirms that ownership functions

within a legal system and also in a constitutional system.13 The legal and

constitutional system includes limitations on the right to exclude, and the source of

those limitations (constitutional, statutory or common law) has an influence on the

authority for and effect of the limitations. The different origins of limitations imposed

on the right to exclude indicate the purpose and nature of those limitations. The

origins also reflect the normative reasons for the limitations and the strength of the

limitations as compared to the right to exclude.

12

See Chapter 2 section 2 4 above.

13 See Chapter 3 section 3 5 above.


244

Chapter 3 shows that limitations directly originating from the Constitution

function within specific circumstances and are normally stronger because they

embody constitutional obligations. Consequently, conflicts between the right to

exclude and these limitations are not resolved by way of balancing. The right to

exclude must give way when it clashes with unqualified non-property constitutional

rights such as life, dignity and equality to ensure that these rights are secured and

protected.14 However, this does not imply that non-owners have free access to land,

because these non-property constitutional rights do not grant or create a general

right of access to land. The point is that a landowner cannot deny access to his land

if non-owners depend on reasonable access to that land for purposes of exercising

their non-property constitutional rights.15

If limitations originate from legislation or the common law, the relevant

legislation or common law principles will show how to resolve conflicts and balance

out the competing rights. Non-property constitutional rights like freedom of speech,

freedom of movement, the right to strike and picket and to secure tenure, which are

subject to regulation and limitation by law, are balanced out against property in

accordance with the legislation that gives effect to those constitutional rights. The

fact that neither the right to exclude nor the non-property constitutional rights are

absolute and that both are regulated and limited in terms of legislation makes it

possible to regulate potential conflicts between the competing rights by

predetermining how conflicts are to be adjudicated.16 Since both sets of competing

rights are subject to regulation, balancing or another form of mutual accommodation

14

See Chapter 3 section 3 2 above.

15 See in this regard Chapter 3 sections 3 2 and 3 5 above.


and Society 15-106 70. See the discussion in Chapter 3 section 3 3 above.


245

is usually prescribed by the relevant legislation. Therefore, limitations originating

from legislation do not override the right to exclude; limitations are imposed by

balancing the right to exclude against a non-property constitutional right or a

statutory right, in a way that accommodates both rights. The legislation or the

landowner can usually impose reasonable time, place and manner restrictions on

non-owners wishing to have access to the land. This implies that both sets of

competing rights are upheld and therefore the affected landowner is usually not

awarded compensation.17 The common law examples are different in this respect

because the right of way of necessity and encroachment examples show that the

competing interests are weighed against each other, whereafter one party wins and

the affected landowner, whose right to exclude is limited, is awarded compensation

for the loss suffered.18

Normally, access rights to land involve a limitation of the right to exclude, but

not all limitations create or imply access rights. Some limitations on the right to

exclude involve only access rights, for example the right to roam and access to the

beach cases. These cases involve legislation that explicitly creates access rights that

limit the landowner’s right to exclude.19 The legislation stipulates when and how

access rights should be exercised and determines the extent of the limitation

imposed on the right to exclude.20 Other cases also involve access and denying

access but they do not involve access rights in the technical legal sense, meaning

17

In this regard, see Chapter 3 sections 3 3 and 3 5 above.

18 On the common law examples, see Chapter 3 sections 3 4 and 3 5 above.

19 See Chapter 3 section 3 3 2, with reference to legislation regulating the right to roam such as the

Countryside and Rights of Way Act 2000 and the Land Reform (Scotland) Act 2003, and legislation

regulating beach access in the South African context such as the National Environmental

Management: Integrated Coastal Management Act 24 of 2008.



246

that non-owners do not have a right to claim access to land. For example, in Victoria

and Alfred Waterfront (Pty) Ltd and Another v Police Commissioner, Western Cape

and Others (Legal Resources Centre as Amicus Curiae)21 it was decided that the

landowners cannot deny others access to their land, but that does not mean that the

respondents have acquired rights to gain access to the land in the technical sense.

The Constitution, PEPUDA22 and public accommodations laws do not grant or create

access rights, but they limit the landowner’s right to exclude non-owners in that a

landowner cannot deny others access to the land when the exercise of their

constitutionally and statutorily protected rights depends on such access.23 In other

instances, limitations on exclusion imply that access and use rights are directly or

indirectly granted by a court order, based on common law principles, for example in

the right of way of necessity and encroachment cases.24 Other cases are clearly not

about access rights or any kind of rights at all. In some circumstances, an owner of

private land may be prevented from excluding non-owners from his land or from

evicting them once they have gained access for residential purposes.25 If the non-

owner is an unlawful occupier, the limitation on the right to exclude is regulated by

legislation, specifically the Prevention of Illegal Eviction from and Unlawful

Occupation of Land Act 19 of 1998 (PIE). In principle, PIE is not aimed at creating

access rights or any right at all because it is focused on regulating eviction of

unlawful occupiers of land. However, PIE may in practice involve accommodation or

land being made available to unlawful occupiers, albeit temporarily.26 The result is

21

2004 (4) SA 444 (C).

22 The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).




26 Pienaar JM Land reform (2014) 338.


247

that PIE limits the landowner’s right to exclude to prevent unlawful eviction, but it

does not specifically create or grant access rights.

Taking into account the expansion of limitations on the right to exclude, for

various purposes, in South African law and other jurisdictions (US, Scots, and

English law), the limitations imposed on the right to exclude indicate that the right is

relative rather than absolute. Limitations on the right to exclude are expected and

cannot be seen as exceptions that need to be proven and justified on normative

grounds, because some limitations are imposed directly by non-property

constitutional rights, by legislation, and by common law. Further indications to the

same effect include the fact that the range of the limitations is so wide; and that the

origin or part of the origin of limitations on exclusion from quasi-public places and

privately owned places is consent. The range of access rights that limit the right to

exclude shows that limitations are normal and common in a legal and constitutional

system.

5 2 3 Justifications

Limitations on the right to exclude can generally be justified in terms of existing

constitutional and property doctrine. South African case law reflects the notion that

ownership functions within a legal and constitutional system of which limitations are

an inherent part.27 Therefore, justification for the limitation of the right to exclude on

normative grounds is not necessary because ownership is not an unlimited right in a

pre-constitutional setting. Therefore, one can assume that property rights are in

principle limited and contextual. From a constitutional perspective, limitations are

from the beginning part of the system within which property functions. Consequently,

27

See Chapters 2 and 3 above.


248

justification refers to justifying the authority and reasons for and effect of a specific

limitation imposed on the right to exclude, instead of justifying the very existence of a

limitation.

In this sense, I consider two types of justification in Chapter 4. The first is

authority and the ground for a limitation, which involve the validity and legitimacy of

the limitation. The second is the section 25(1) justification, which involves the effect

of the limitation on a specific owner, examining (apart from authority for the

limitation) whether the effect is proportionate. I discuss these two types of

justification separately but there is an overlap between them as far as the authority

for the limitation is concerned. This is as a result of the South African property

clause, section 25, that includes both authority and proportionality requirements. Not

every legal system has a constitutional property clause that contains both

requirements and not every legal system with a property clause combines the two

requirements like section 25(1) does. As a consequence, I discuss the authority and

legitimacy issue twice in the South African context.28

In Chapter 4 I establish that justifications for the limitation vary depending on

whether the landowner is prevented from excluding others on the basis of non-

property constitutional rights; legislation that was enacted to give effect to non-

property constitutional rights; legislation that was not directly enacted to give effect to

non-property constitutional rights; or the common law.

The Constitution imposes constitutional obligations that require the protection

and promotion of non-property constitutional rights like life, dignity and equality.

These rights are unqualified, which suggests that the right to exclude is limited in

principle to allow for the protection of these non-property constitutional rights. If the 28

For a detailed discussion on the justification issue, see Chapter 4 sections 4 2 and 4 3 above.


249

constitutional obligation necessarily implies limitation of the right to exclude, the

limitation is justified by the Constitution. As a result, it is unnecessary to inquire

whether the limitations imposed on the right to exclude can be justified on other

grounds other than the Constitution. Rather, the right to exclude (property) must give

way so that these rights are secured in line with the constitutional mandate.29

The right to equality functions on the same constitutional level as the right to life

and dignity, but the presence of legislation regulating equality implies that these

rights should be treated differently. The right to exclude is limited if it results in

discriminatory practices or if it affects the right to equality. In principle the same

argument applies in the right to life and dignity cases; the right to exclude is limited if

it affects these non-property constitutional rights. However, in equality cases the

limitations imposed on the right to exclude do not originate directly from the

Constitution but from the legislation enacted to give effect to the constitutional right

to equality. Therefore, legislation such as the US public accommodations laws and

PEPUDA,30 which regulates its application, and not the Constitution, justify equality

limitations on the right to exclude.31 In equality cases, it is therefore necessary to

determine the authority and reason for the limitation and whether the effect of the

limitation is proportionate (section 25(1) justification).32 Since there is no legislation

giving effect to the right to life and dignity, only the constitutional authority for the

limitation is applicable, and therefore there is no need for section 25(1) analysis.33

The different treatment of the life and dignity cases and equality cases in the

29

See Chapter 4 section 4 2 1 above.

30 The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) does

not define or qualify the right to equality; instead it only regulates its application.

31 In this regard, see Chapter 4 section 4 2 1 above.

32 See Chapter 4 sections 4 2 1 and 4 3 above.

33 See Chapter 4 sections 4 3 4 and 4 4 above.


250

justification process casts some light on the overlap concerning authority in both

types of justification.

Legislation usually limits the right to exclude for a specific statutory goal that

justifies preventing a landowner from excluding non-owners who want to gain access

or from excluding persons whom the landowner had voluntarily given access to. If

the legislation was enacted to give effect to a non-property constitutional right, the

reason for the limitation is the protection of that particular constitutional right; if the

legislation was not specifically intended to give effect to a non-property constitutional

right, the reason for the limitation would normally be indicated in the legislation in

question. In both instances, the authority for the limitation is the legislation that sets

out its purpose and prescribes the procedure to ensure proportionate outcomes.

Statutory examples that are discussed in this chapter show that there usually is a

reason and authority for specific limitations imposed on the right to exclude.34

The common law examples show that the authority for limiting the right to

exclude is the common law. The reason for the limitation is based on policy, but

there are different kinds of policy, namely economic efficiency (in right of way of

necessity cases)35 and balance of convenience (in encroachment cases).36 These

policy considerations justify limitations placed on the right to exclude. An award of

compensation to the affected landowner in the right of way of necessity and

encroachment cases has a significant role in determining whether the limitation is

justifiable. In both cases, compensation is paid for the right that was forcibly

34

See Chapter 4 sections 4 2 2 and 4 2 3 above.

35 See Chapter 4 section 4 2 4 above for a discussion of the policy considerations in the right of way

of necessity cases.

36 For a discussion of the policy considerations in encroachment cases see Chapter 4 section 4 2 4

above.


251

transferred and acquired.37 The effect of compensation in both cases is to equalise

the burden for the landowner’s right to exclude that was limited, either because of a

balance of convenience (in encroachment cases), or for economic efficiency reasons

(in the case of the right of way of necessity).38

Assuming that property is limited in principle, limiting the right to exclude is

firstly justified on the basis of authority and reason (grounds for validity). However, it

is also necessary to justify the effect that the limitation might have on a specific

landowner. A landowner is deprived of the right to exclude when the law imposes

limitations on the right (except in constitutional cases dealing with the right to life and

dignity, where there is no intervening legislation and the right to exclude is limited

directly by the Constitution, bringing about an ex ante truncated right). In cases

where the limitation amounts to a deprivation of property, the deprivation must be

authorised by law of general application for a valid purpose. The case by case non-

arbitrariness test ensures that the deprivation effected by the limitation of the right to

exclude is not arbitrary to comply with section 25(1) requirements. The section 25(1)-

type justification is a proportionality-type justification that ensures that the effects of a

specific limitation, on the affected owner, are not disproportionate. In this sense, the

effects of limiting the landowner’s right to exclude are justified in that they are not

unjustifiably harsh or unfair.

In view of the Constitution, legislation and common law, the right to exclude in

the strong-absolute sense is not supported by theory, doctrine or case law. In fact,

the right to exclude is relative and its limitation in this regard cannot be seen as mere

exceptions that require strong normative justification. The right to exclude is qualified

37

Van der Walt AJ “Sharing servitudes” 2016 (Forthcoming) 1-77 42.

38 See Chapter 3 sections 3 4 and 3 5 above.


252

in general on pragmatic and contextual grounds. The constitutional perspective

adopted in this dissertation indicates that property rights are in principle limited and

that they function within a legal and constitutional system that includes limitations.

Limitations are therefore viewed in a constitutional context, and not with a focus on

individual rights. Accordingly, the nature of justification entails that the authority for

and effects of limiting the landowner’s right to exclude are to be considered in a

constitutional system, which does not require normative justificatory grounds for a

specific limitation.

5 3 Concluding remarks

An assessment of the right to exclude and its relation to access rights to land raises

questions about the idea of absolute ownership and exclusion. The central argument

of this dissertation is that the right to exclude is in principle limited, with the result

that limitations in the form of access rights are to be expected and often justifiable.

Theoretical and doctrinal literature does not support a strong, absolute exclusion

right that requires normative justificatory grounds whenever a limitation is imposed

on the right. In that sense, property rights are limited and contextual insofar as they

function within a legal and constitutional system that includes limitations. Limitations

on the right to exclude originate from different sources that identify the purpose and

nature of the limitation. This dissertation has redefined the notion of justifications for

limiting the right to exclude: assuming that property rights are not in principle

unlimited, justification does not involve normative reasons for the existence of every

limitation but rather means that the authority and grounds for the limitation and the

effect of the limitation on a specific owner must be established in the constitutional

context.


253

The content of the landowner’s right to exclude is defined or shaped by the

nature of the property involved and the origin of a specific limitation. The right to

exclude can be enforced strictly in a private home, but its enforcement on public or

quasi-public land is often limited. When an owner opens his property to the public for

his own benefit, his property rights become circumscribed. Although the property is

privately owned, a general or unrestricted invitation to access land for public use

causes the land to lose its purely private nature and it acquires a public character.

Consequently, an owner of private property that is open to the public cannot deny

access to his property to non-owners who want to exercise their constitutionally and

statutorily protected rights. The cases discussed in this regard establish that private

ownership and its exclusionary powers cannot be used to define or limit public

access to quasi-public places for social, commercial or recreational purposes. These

cases also suggest that limitations on the right to exclude are not exceptional,

because access is granted on the basis of implied consent from the owner. However,

the constitutional obligations imposed by non-property constitutional rights are more

important than consent.

It is a misconception to regard the right to exclude as an absolute right,

considering the complex relationship between the right to exclude and authorised

access to property. Instead, property should be considered in a constitutional system

that recognises competing rights, and of which limitations are to be expected. Many

property law rules govern the relationship between owners and non-owners and thus

property rules cannot be viewed or analysed purely in terms of exclusion. In the

South African law context, property law has changed considerably in line with the

Constitution. Consequently, property rights cannot only be perceived in terms of its

exclusionary element, since it involves a constitutionally required balance between


254

the interests of both owners and non-owners. Accordingly, the institution of property

should be re-evaluated in light of the current needs and changing circumstances of

society.

The complex relationship between the right to exclude and access rights

indicates that the way forward is not to focus solely on exclusion. Rosser criticises

the progressive property theorists (who argue that property is about more than just

exclusion) for not being radical enough and not focusing their attention on broader

issues of acquisition and distribution of property.39 The progressive property theorists

emphasise underlying human values that should limit the right to exclude but treat

acquisition and distribution of property as secondary to rules involving use rights.40

An approach that also pays more attention to acquisition and distribution would

consider the problematic origins of property law and the exclusionary effect of

ownership rights related to acquisition and inequality.41 Mossoff (an exclusive-use

theorist) argues that acquisition, use and disposal represent a conceptual unity that

together serve to give full meaning to the concept of property.42 Having considered a

wide range of access rights to land, the point is that focusing on exclusion

necessarily masks important contextual factors, which are important for revisiting

acquisition and distribution, and broader access to land issues.

Exclusion and access rights are both legitimate interests in land. Perhaps more

emphasis should also be put on the social function of property rather than focusing

on exclusion. Furthermore, perhaps Dyal-Chand’s and Van der Walt’s notion of

39

Rosser E “An ambition and transformative potential of progressive property” (2013) 101 California

Law Review 107-172 109, 111.

40 111.

41 111.


444 376.


255

sharing as an alternative remedial (reconciling) option can influence the outcome of

disputes involving exclusion and access.43 The examples of access rights discussed

in this dissertation involve situations where the law, namely the Constitution,

legislation and common law, justifies some kind of enforced sharing of property

against the landowner’s will. The common law principles pertaining to the right of

way of necessity is a good illustration of a forced sharing outcome.44 The

requirement to prove necessity makes it possible to create a sharing outcome. If the

court applies the requirements strictly and if enforcing a right of way of necessity

does not cause disproportionate effects on the servient tenement owner, it can be

argued that the outcome complies with the Constitution. The Constitution and

legislation also makes it possible to create forced sharing based on constitutional

reasons or on specified statutory goals in instances where the right to exclude

clashes with non-property constitutional rights, statutory rights protected in dedicated

legislation, or legislation not directly giving effect to a constitutional right.45

The model of enforced sharing furthermore promotes outcomes that do not

focus solely on exclusion but on actual use of the land and the interests of the

parties involved, to ensure that competing interests are fairly accommodated.46 In

other words, the model creates a middle space for courts to think about property

through the lens of sharing rather than the lens of exclusivity.47

43

Dyal-Chand R “Sharing the cathedral” (2013) 46 Connecticut Law Review 647-723; Van der Walt

AJ “Sharing servitudes” 2016 (Forthcoming) 1-77.

44 Van der Walt and Dyal-Chand, see the discussion in Chapter 2 section 2 2 3 above.

45 Van der Walt AJ “Sharing servitudes” 2016 (Forthcoming) 1-77.

46 Dyal-Chand R “Sharing the cathedral” (2013) 46 Connecticut Law Review 647-723.

47 Dyal-Chand R “Sharing the cathedral” (2013) 46 Connecticut Law Review 647-723 680. See also

Van der Walt AJ “Sharing servitudes” 2016 (Forthcoming) 1-77.


256

As is evident thus far, court decisions in statutory and common law cases often

result in limiting the landowner’s right to exclude, after a balancing process that

ensures mutual accommodation, in a way that resembles a sharing remedy. The

work of Singer offers alternative perspectives on the role that democracy plays in

property law to ensure sharing outcomes that do not violate fundamental values.

Singer describes property as “the law of democracy” to indicate that property rights

are defined and limited by the requirements of living together in a democratic society

that is characterised by fundamental values of liberty, equality and democracy.48 In

this context, property shapes social relations and should therefore be regulated by

law to ensure that democracy is upheld and that freedom and equality are promoted.

This dissertation argues that the right to exclude functions within a legal and

constitutional system that determines whether to allow or deny landowners the right

to control access to their land. In instances where the exclusion of non-owners would

be inconsistent with the norms governing a democratic society, the right to exclude

should be limited to embrace democratic values. In light of Singer’s idea of property

as the law of democracy, limitations cannot be viewed as exceptions; they are

central to the property law system. Focusing on exclusion detracts attention from the

norms and values that enable people to live together in a democratic society.

Considering the cases and examples that I discuss in this dissertation, this means

that sometimes a solution to a particular conflict depends on a sharing remedy that

reconciles, balances, or accommodates competing rights.

48

Singer JW “Property as the law of democracy” (2014) 63 Duke Law Journal 1287-1335.


257

To conclude, it is perhaps appropriate to once again reflect briefly on the

Victoria and Alfred Waterfront decision.49 The decision shows that the right to

exclude is not prioritised abstractly and that exclusion of non-owners is not always a

preferred outcome.50 The landowner’s right to exclude is limited when it concerns a

quasi-public space or even private property (with restricted access), if access to the

land is reasonably necessary to secure important non-property constitutional rights.

Upholding the right to exclude absolutely and abstractly may in practice derogate

from fundamental human rights. The court refused to grant a blanket prohibition

against entry so as to protect the respondents’ right to life, dignity and freedom of

movement. The resulting limitation on the landowners’ right to exclude is a result of

protecting a non-property constitutional right, namely life and dignity. The discussion

in previous chapters indicates that the right to life and dignity cannot be balanced

against the right to exclude because they are fundamental constitutional rights and

the constitutional obligation to uphold them is stronger than the right to exclude. This

has implications for constitutional analysis in that there is no need for section 25(1)

analysis in these cases. In the part of the Victoria and Alfred Waterfront decision

dealing with the right to freedom of movement the court seems to engage in a

balancing process to determine the appropriate outcome that would optimise the

respondents’ freedom of movement without necessarily causing disproportionate

effects for the landowners. However, the balancing process does not involve

balancing the constitutional right to freedom of movement and the right to exclude,

but rather a weighing of different factors to determine whether the effects of the

limitation would be proportionate in the specific case. In this context and because of

49


Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA 444 (C).



258

the applicability of mediating legislation, the section 25(1) analysis is applicable to

test whether the limitation complies with the Constitution. The Victoria and Alfred

Waterfront decision shows that different sources of law impose limitations on the

right to exclude, for different reasons, and that the limitations consequently require

different kinds of justification. The decision also indicates the importance of context

and the qualified nature of the right to exclude.

In conclusion, courts tend to make ex post, contextualised decisions about the

relative needs and interests of landowners and non-owners, with the result that

landowners’ right to exclude is limited, when the exercise of fundamental

constitutional rights, statutory rights or common law rights depends on access to

land. Therefore, depending on the context of the dispute, the right to exclude is

sometimes limited to allow non-owners to have access to land belonging to others,

so as to protect their rights. Furthermore, depending on the nature of the property

(whether it is private, public or quasi-public), landowners’ right to exclude is often

justifiably limited in a constitutional system.


259

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South Africa

Anderson and Murison v Colonial Government 1891 (8) SC 293

Aventura Ltd v Jackson NO and Others 2007 (5) SA 497 (SCA)

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC)

Bekker v Van Wyk 1956 (3) SA 13 (T)

Boss Foods CC v Ingo Rehders Properties and Another [2014] ZAGPJHC 236 (26

May 2014)

Carter v Driemeyer and Another (1913) 34 NPD 1

Chetty v Naidoo 1974 (3) SA 13 (A)

Chirwa v Transnet Ltd 2008 (2) SA 24 (CC)

Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty)

Ltd and Another 2012 (2) SA 104 (CC)

Consolidated Diamond Mines of South West Africa Ltd v Administrator, South West

Africa and Another 1958 (4) SA 572 (A)

Deutschmann NO and Others v Commissioner for the South African Revenue

Service; Shelton v Commissioner for the South African Revenue Service 2000

(2) SA 106 (E)

Du Plessis v De Klerk 1996 (3) SA 850 (CC)

Ellis v Viljoen 2001 (4) SA 795 (C)


286

Ex Parte President of the Republic of South Africa: In re Pharmaceutical

Manufacturers Association of South Africa 2000 (2) SA 674 (CC)

Fedgroup Participation Bond Managers (Pty) Limited vs Trustee of the Capital

Property Trust Collective Investment Scheme in Property (unreported, 10

December 2013: GJ case no 41882/12)

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue

Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002

(4) SA 768 (CC)

Fourways Mall (Pty) Ltd and Another v South African Commercial Catering and

Allied Workers Union and Another 1999 (3) SA 752 (W)

Fuel Retailers Association of Southern Africa v Director-General: Environmental

Management, Department of Agriculture, Conservation and Environment,

Mpumalanga Province 2007 (6) SA 4 (CC)

Gien v Gien 1979 (2) SA 1113 (T)

Growthpoint Properties Ltd v South African Commercial Catering and Allied Workers

Union and Others (2010) 31 ILJ 2539 (KZD)

Hattingh and Others v Juta (CCT 50/12) [2013] ZACC 5 (14 March 2013)

Jackson v Aventura Ltd [2005] 2 All SA 518 (C)

Johannesburg City Council v Rand Townships Registrar 1910 TS 1314

Johl and Another v Nobre and Others (23841/2010) [2012] ZAWCHC 20 (20 March

2012)

Lentz v Mullin 1921 EDL 268

Linvestment CC v Hammersley and Another 2008 (3) SA 283 (SCA)


287

Maree v Raad van Kuratore vir Nasionale Parke 1964 (3) SA 727 (O)

MEC for Education; KwaZulu Natal v Pillay 2008 (1) SA 474 (CC)

Minister of Health NO v New Clicks South Africa (Pty) Ltd (Treatment Action

Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC)

Minister of Safety and Security and Another v Van der Merwe and Others [2011] 1

All SA 260 (SCA)

Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and

Others v Buffalo City Municipality and Others; Transfer Rights Action

Campaign and Others v Member of the Executive Council for Local

Government and Housing, Gauteng and Others 2005 (1) SA 530 (CC)

Naudé v Ecoman Investments en Andere 1994 (2) SA 95 (T)

Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA)

Nhlabathi and Others v Fick 2003 (7) BCLR 806 (LCC)

Nkosi and Another v Bührmann 2002 (1) SA 372 (SCA)

Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others 2010 (4)

BCLR 312 (CC)

Park-Ross and Another v The Director, Office for Serious Economic Offences 1995

(2) SA 148 (C)

Phillips v South African National Parks Board (4035/07) [2010] ZAECGHC 27 (22

April 2010)

Pike v Hamilton, Ross & Co (1855) 2 Searle 191

Polonyfis v Minister of Police and Others (64/10) [2011] ZASCA 26 (18 March 2011)


288

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)

President of the Republic of South Africa and Another v Modderklip Boerdery (Pty)

Ltd and Others 2005 (5) SA 3 (CC)

Rand Waterraad v Bothma en ’n Ander 1997 (3) SA 120 (O)

Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works,

Gauteng Provincial Government, and Another 2009 (6) SA 391 (CC)

Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A)

Roseveare v Katmer, Katmer v Roseveare and Another (2010/44337, 2010/41862)

[2013] ZAGPJHC 18 (28 February 2013)

S v Makwanyane 1995 (3) SA 391 (CC)

S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1

(CC)

S v Thebus 2003 (6) SA 505 (CC)

SA Yster en Staal Industriële Korporasie Bpk v Van der Merwe 1984 (3) SA 706 (A)

Sanders NO and Another v Edwards NO and Others 2003 (5) SA 8 (C)

Saner v Inanda Road Board (1892) 13 NLR 225

Serole and Another v Pienaar 2000 (1) SA 328 (LCC)

South African National Defence Union v Minister of Defence 2007 (5) SA 400 (CC)

South African Shore Angling Association and Another v Minister of Environmental

Affairs 2002 (5) SA 511 (SE)

Stark v Broomberg (1904) 14 CTR 135

Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 281 (C)


289

Van Boom v Visser (1904) 21 SC 360

Van Rensburg v Coetzee 1977 (3) SA 130 (T)

Van Rensburg v Coetzee 1979 (4) SA 655 (A)

Victoria and Alfred Waterfront (Pty) Ltd and Another v Police Commissioner,

Western Cape and Others (Legal Resources Centre as Amicus Curiae) 2004

(4) SA 444 (C)

Walele v City of Cape Town and Others 2008 (6) SA 129 (CC)

Wilhelm v Norton 1935 EDL 143


290

Other jurisdictions

Amalgamated Food Employees Union Local 590 v Logan Valley Plaza Inc 391 US

308 (1968) (USA)

Committee for the Commonwealth of Canada v Canada [1991] 1 SCR 139 (SC)

(Canada)

Dolan v City of Tigard 512 US 374 (1994) (USA)

Dyce v Lady James Hay (1852) 1 Macq 305 (Scotland)

Earl of Breadalbane v Livingston (1790) M 4999, as affirmed (1791) 3 Pat 221

(Scotland)

Entick v Carrington (1765) 19 Howell’s State Trials 1029, 95 ER 807 (UK)

Fashion Valley Mall, LLC v NLRB 42 Cal 4th 850 (2007) (USA)

First Unitarian Church of Salt Lake City v Salt Lake City Corporation 308 F3d 1114

(10th Cir 2002) (USA)

Folgueras v Hassle 331 F Supp 615 (1971) (USA)

Golden Gateway Center v Golden Gateway Tenants Association 26 Cal 4th 1013

(2001) (USA)

Hixon v Public Service Commission 146 NW2d 577 (Wis 1966) (USA)

Hudgens v National Labor Relations Board 424 US 507 (1976) (USA)

International Society for Krishna Consciousness v Lee 505 US 672 (1992) (USA)

Kaiser Aetna v United States 444 US 164 (1979) (USA)

Lloyd Corp Ltd v Tanner 407 US 551 (1972) (USA)

Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982) (USA)


291

Marsh v Alabama 326 US 501 (1946) (USA)

Matthews v Bay Head Improvement Association 471 A2d 355 (NJ 1984) (USA)

National Labor Relations Board v Calkins 187 F3d 1080 (9th Cir 1999) (USA)

Neptune City v Borough of Avon-by-the-Sea 294 A2d 47 (NJ 1972) (USA)

New Jersey Coalition Against the War in the Middle East v J.M.B Realty Corp 650

A2d 757 (NJ 1994) (USA)

NLRB v Babcock & Wilcox Co 351 US 105 (1956) (USA)

Nollan v California Coastal Commission 483 US 825 (1987) (USA)

Olga Tellis v Bombay Municipal Corporation (1986) SC 180 (India)

Perry Education Association v Perry Local Educators’ Association 460 US 37 (1983)

(USA)

PruneYard Shopping Center v Robins 447 US 77 (1980) (USA)

R (Ashbrook) v East Sussex County Council [2002] EWCA Civ 1701 (UK)

Raleigh Avenue Beach Association v Atlantis Beach Club Inc 879 A2d 125 (NJ 2005)

(USA)

Robins v Pruneyard Shopping Center 592 P2d 341 (1979) (USA)

Semayne’s Case 77 ER 194 (1604) (UK)

State of New Jersey v Shack 58 NJ 297 (1971) (USA)

Tellis and Others v Bombay Municipal Corporation and Others [1987] LRC (Const)

351 (India)

Thornton v Hay 462 P2d 671 (Ore 1969) (USA)

Tuley v Highland Council [2009] CSIH 31A; 2009 SLT 616 (Scotland)


292

United States v Grace 461 US 171 (1983) (USA)

Uston v Resorts International Hotel Inc 445 A2d 370 (NJ 1982) (USA)

Wood v State 2003 WL 1955433 (Fla Cir Ct 2003) (USA)


293

Legislations and constitutions

South Africa

Constitution of the Republic of South Africa, 1996

Criminal Procedure Act 51 of 1977

Extension of Security of Tenure Act 62 of 1997

Income Tax Act 58 of 1962

Investigation of Serious Economic Offences Act 117 of 1991

Labour Relations Act 66 of 1995

National Environmental Management Act 107 of 1998

National Environmental Management: Integrated Coastal Management Act 24 of

2008

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

Prevention of Organised Crime Act 121 of 1998

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Rental Housing Act 50 of 1999

Sea-Shore Act 21 of 1935

Sectional Titles Act 95 of 1986

Sectional Titles Scheme Management Act 8 of 2011

Value Added Tax Act 89 of 1991


294

Other jurisdictions

Access to Neighbouring Land Act 1992 (UK)

Americans with Disabilities Act of 1990 (USA)

Civil Rights Act of 1964 (USA)

Constitution of India 1949

Countryside and Rights of Way Act 2000 (UK)

Fair Housing Act of 1968 (USA)

Land Reform (Scotland) Act 2003

National Labor Relations Act of 1935 (USA)

Party Wall etc Act 1996 (UK)

United States Constitution (Fifth Amendment) (1791)

United States Constitution (First Amendment) (1791)

United States Constitution (Fourteenth Amendment) (1791)


a constitutional analysis of access rights that limit

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